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

No. 21-309

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 THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AND THE

NATIONAL ASSOCIATION OF

MANUFACTURERS AS AMICI CURIAE

IN SUPPORT OF PETITIONER

DARYL JOSEFFER

PAUL LETTOW

U.S. Chamber

Litigation Center

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

ERICA KLENICKI

NAM Legal Center

733 Tenth Street, N.W.

Suite 700

Washington, DC 20001

(202) 637-3100

ANDREW J. PINCUS

Counsel of Record

ARCHIS A. PARASHARAMI

DANIEL E. JONES

CARMEN N. LONGORIA-GREEN

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................2

ARGUMENT ...............................................................5

I. Section 1’s Narrow Residual Clause Is

Limited To Classes Of Workers Who

Actually And Regularly Engage In

Transportation Across State Or National

Borders ..................................................................5

A. The Residual Clause Must Be

Interpreted In Accordance With Its

Plain Meaning When Enacted And

The Structure Of The FAA .........................5

B. The Text And Structure Of The FAA

Demonstrate That Saxon Is Not

Included Within A “Class Of

Workers Engaged In * * * Interstate

Commerce.” ..................................................8

1. The residual clause is limited to

classes of workers responsible for

transporting goods across state or

national borders. ....................................9

2. A class of workers is covered by

the residual clause only if actual

transportation across state or

national borders is a central part

of the workers’ job description.............. 13

C. The Historical Context Of Section 1

Further Confirms Its Narrow Reach ........ 15

ii

D. The Court Of Appeals Erred By

Relying On The Meaning Of FELA

To Support Its Broad Interpretation

Of The Residual Clause ............................ 18

II. An Improperly Expansive Construction Of

The Residual Clause Exemption Will

Harm Businesses And Workers And

Burden Courts ..................................................... 22

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009) .............................................. 27

Allied-Bruce Terminix Cos. v. Dobson,

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

Atchison, Topeka & Santa Fe Ry. v.

Buell,

480 U.S. 557 (1987) .............................................. 19

Capriole v. Uber Techs., Inc.,

7 F.4th 854 (9th Cir. 2021) .................................. 14

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ...................................... passim

Collins v. Yellen,

141 S. Ct. 1761 (2021) .......................................... 12

Cunningham v. Lyft, Inc.,

17 F.4th 244 (1st Cir. 2021) ................................. 14

Eastus v. ISS Facility Servs., Inc.,

960 F.3d 207 (5th Cir. 2020) .............. 14, 21, 22, 26

EEOC v. Waffle House, Inc.,

534 U.S. 279 (2002) ................................................ 2

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ............................................ 7

iv

TABLE OF AUTHORITIES—continued

Page(s)

Gen. Comm. of Adjustment of Bhd. of

Locomotive Eng’rs for MissouriKansas-Texas R.R. v. MissouriKansas-Texas R. Co.,

320 U.S. 323 (1943) .............................................. 17

Golightly v. Uber Techs., Inc.,

2021 WL 3539146

(S.D.N.Y. Aug. 11, 2021) ...................................... 25

Gulf Oil Corp. v. Copp Paving Co.,

419 U.S. 186 (1974) ........................................ 19, 20

Hamrick v. Partsfleet, LLC,

1 F.4th 1337 (11th Cir. 2021) ...................... passim

Heller v. Rasier, LLC,

2020 WL 413243

(C.D. Cal. Jan. 7, 2020) .......................................... 9

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

398 F.3d 1286 (11th Cir. 2005) ............................ 15

Jamison v. Encarnacion,

281 U.S. 635 (1930) .............................................. 19

Kowalewski v. Samandarov,

590 F. Supp. 2d 477 (S.D.N.Y. 2008) ..................... 9

Lamps Plus, Inc. v. Varela,

139 S. Ct. 1407 (2019) .......................................... 27

v

TABLE OF AUTHORITIES—continued

Page(s)

McCluskey v. Marysville & Northern

Ry. Co.,

243 U.S. 36 (1917) ............................................... 20

McDermott Int’l, Inc. v. Wilander,

498 U.S. 337 (1991) .............................................. 21

Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp.,

460 U.S. 1 (1983) .................................................. 23

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) ...................................... 4, 6, 7

Osvatics v. Lyft, Inc.,

535 F. Supp. 3d 1 (D.D.C. 2021) ............................ 9

Parker Drilling Mgmt. Servs., Ltd. v.

Newton,

139 S. Ct. 1881 (2019) ............................................ 6

Rittmann v. Amazon.com, Inc.,

971 F.3d 904 (9th Cir. 2020) ........................ passim

Roberts v. Sea-Land Servs., Inc.,

566 U.S. 93 (2012) ................................................. 7

Shanks v. Del., Lackawanna & W. R.R.,

239 U.S. 556 (1916) .............................................. 19

Singh v. Uber Techs., Inc.,

--- F. Supp. 3d ----, 2021 WL 5494439

(D.N.J. Nov. 23, 2021) .......................................... 25

vi

TABLE OF AUTHORITIES—continued

Page(s)

Singh v. Uber Techs., Inc.,

939 F.3d 210 (3d Cir. 2019) ............................. 9, 25

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

& Mach. Workers,

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

Tyler v. Uber Techs., Inc.,

2020 WL 5569948

(D.D.C. Sept. 17, 2020) .......................................... 9

United Elec., Radio & Mach. Workers v.

Gen. Elec. Co.,

233 F.2d 85 (1st Cir. 1956) .................................. 16

United States v. Am. Bldg. Maint. Indus.,

422 U.S. 271 (1975) ........................................ 11, 20

United States v. Ohio Oil Co.,

234 U.S. 548 (1914) .............................................. 11

Waithaka v. Amazon.com, Inc.,

966 F.3d 10 (1st Cir. 2020) ................................. 26

Wallace v. Grubhub Holdings, Inc.,

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

Wisconsin Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ............................................ 6

Statutes

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

vii

TABLE OF AUTHORITIES—continued

Page(s)

9 U.S.C. § 2 ........................................................ 2, 5, 11

Act of October 1, 1888,

25 Stat. 501 .......................................................... 17

Boiler Inspection Act,

36 Stat. 913 (1911) ............................................... 21

Erdman Act of June 1, 1898,

30 Stat. 424 .......................................................... 17

Federal Employers’ Liability Act of 1908,

45 U.S.C § 51 ................................................ passim

Hours of Service Act,

34 Stat. 1415 (1907) ............................................. 21

Newlands Act of July 15, 1913,

38 Stat. 103, 45 U.S.C. § 101 et seq. .................... 17

Railway Labor Act of 1926,

44 Stat. 577 .................................................... 15, 17

Shipping Commissioners Act of 1872,

17 Stat. 262 .......................................................... 15

Transportation Act of 1920,

41 Title III Stat. 456 ...................................... 15, 17

viii

TABLE OF AUTHORITIES—continued

Page(s)

Other Authorities

Harold Barger, The Transportation Industries, 1889-1946: A Study of Output, Employment and Productivity

(1951) ................................................................... 13

Black’s Law Dictionary (2d ed. 1910) ................. 10, 11

Michael Delikat & Morris M. Kleiner,

An Empirical Study of Dispute

Resolution Mechanisms: Where Do

Plaintiffs Better Vindicate Their

Rights?, 58 Disp. Resol. J. 56 (Nov.

2003–Jan. 2004) ................................................... 28

Paul Stephen Dempsey,

“Transportation: A Legal History,”

30 Transp. L.J. 235 (2003) ................................... 12

Lewis L. Maltby, Private Justice:

Employment Arbitration and Civil

Rights, 30 Colum. Hum. Rts. L. Rev.

29 (1998) ......................................................... 28, 29

Nat’l Workrights Inst., Employment

Arbitration: What Does the Data

Show? (2004), https://bit.ly/3IVddnP .................. 29

ix

TABLE OF AUTHORITIES—continued

Page(s)

L.E. Peabody, Forecasting Future Volume of Railway Traffic, in 66 Railway Age 899 (Samuel O. Dunn et al.

eds., 1924) ............................................................ 12

Nam D. Pham, Ph.D. & Mary Donovan,

Fairer, Better, Faster: An Empirical

Assessment of Employment

Arbitration, NDP Analytics 5, 11-12

(2019), https://bit.ly/3GMVyxV ............................ 28

Sales and Contracts to Sell in Interstate

and Foreign Commerce, and Federal

Commercial Arbitration: Hearing on

S. 4213 and S. 4214 Before a

Subcomm. of the Senate Comm. on

the Judiciary, 67th Cong. (1923) ........................ 16

David Sherwyn, Samuel Estreicher, &

Michael Heise, Assessing the Case

for Employment Arbitration: A New

Path for Empirical Research,

57 Stanford L. Rev. 1557 (2005) .................... 28, 29

Theodore J. St. Antoine, Labor and

Employment Arbitration Today: MidLife Crisis or New Golden Age?, 32

Ohio St. J. on Disp. Resol. 1 (2017) ..................... 29

The Century Dictionary & Cyclopedia

(1914) .................................................................... 10

x

TABLE OF AUTHORITIES—continued

Page(s)

The Desk Standard Dictionary of the

English Language (new ed. 1922) ......................... 9

Thirty-Third Annual Report on the

Statistics of Railways in the United

States (Interstate Commerce Comm.,

Bureau of Statistics 1933) ................................... 12

Webster’s Collegiate Dictionary

(2d ed. 1919) ........................................................... 9

Webster’s New International Dictionary

(1st ed. 1909) .......................................................... 9

INTEREST OF THE AMICI CURIAE

The Chamber of Commerce of the United States of

America is the world’s largest business federation,

representing approximately 300,000 direct members

and indirectly representing the interests of more than

three million companies and professional organizations of every size, in every industry sector, and from

every region of the country. The Chamber represents

the interests of its members in matters before the

courts, Congress, and the Executive Branch. To that

end, the Chamber regularly files amicus curiae briefs

in cases that raise issues of concern to the Nation’s

business community.1

The National Association of Manufacturers (NAM)

is the largest manufacturing association in the United

States, representing small and large manufacturers

in every industrial sector and in all 50 states. Manufacturing employs more than 12 million men and

women, contributes $2.33 trillion to the U.S. economy

annually, has the largest economic impact of any major sector, and accounts for nearly two-thirds of all private-sector research and development in the nation.

The NAM is the voice of the manufacturing community and the leading advocate for a policy agenda that

helps manufacturers compete in the global economy

and create jobs across the United States. The NAM

regularly submits amicus briefs in cases presenting

issues of importance to the manufacturing community.

1 Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici, their members, and their counsel made a monetary

contribution to its preparation or submission. All parties have

consented to the filing of this brief.

2

Many of amici’s members and affiliates regularly

rely on arbitration agreements in their contractual relationships. Arbitration allows them to resolve disputes promptly and efficiently while avoiding the

costs associated with litigation in court. Arbitration is

speedy, fair, inexpensive, and less adversarial than

litigation. Based on the policy reflected in the Federal

Arbitration Act (FAA), amici’s members and affiliates

have structured millions of contractual relationships

around the use of arbitration to resolve disputes.

Amici therefore have a strong interest in reversal

of the judgment below. The Seventh Circuit’s decision

holding that the FAA does not apply to workers who

are several steps removed from the actual movement

of goods in interstate commerce—here, a supervisor of

workers who load and unload baggage onto airplanes—cannot be squared with either the text or historical context of the FAA. Moreover, the decision

threatens to shrink considerably the FAA’s protections, a result that will harm both businesses and

workers.

INTRODUCTION AND

SUMMARY OF ARGUMENT

For nearly a century, the Federal Arbitration Act

has embodied Congress’s strong commitment to

arbitration. Congress enacted the FAA in 1925 to

“reverse the longstanding judicial hostility to

arbitration agreements” and to “manifest a liberal

federal policy favoring arbitration.” EEOC v. Waffle

House, Inc., 534 U.S. 279, 289 (2002) (quotation marks

omitted).

To that end, Section 2 of the FAA broadly protects

arbitration agreements “evidencing a transaction involving commerce.” 9 U.S.C. § 2. This Court has held

3

that the phrase “involving commerce” “signals an intent to exercise Congress’ commerce power to the full.”

Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265,

277 (1995).

In recent years, plaintiffs increasingly have tried

to avoid the FAA’s reach by invoking a limited exemption in Section 1, which excludes from the Act’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 (emphasis

added).

This case presents a prime example. Respondent

Saxon supervised “ramp agents,” whose “primary duties include loading and unloading baggage and guiding planes to gates.” Pet. App. 23a-24a (citation omitted). Saxon herself sometimes loaded or unloaded baggage. Ibid. But her work as a supervisor, and that of

the ramp agents, never included transporting the luggage from the airport to another location, much less

another location across state or national borders.

Nonetheless, Saxon resisted enforcement of her

arbitration agreement by asserting that she is covered

by the Section 1 exemption. The Seventh Circuit

agreed, holding that Saxon’s work loading and unloading baggage was sufficiently “closely related” to

transportation. Pet. App. 10a, 17a.

That result, and the nebulous legal standard

adopted by the court of appeals, are wrong.

Over two decades ago, this Court instructed that

Section 1’s exemption must be given a “narrow construction” and “precise reading.” Circuit City Stores,

Inc. v. Adams, 532 U.S. 105, 118, 119 (2001). More recently, in addressing Section 1’s reference to “contracts of employment,” this Court explained that

4

courts must interpret the text of Section 1 based on

the “ordinary meaning” of the words “at the time Congress enacted the statute.” New Prime Inc. v. Oliveira,

139 S. Ct. 532, 539 (2019) (alterations and quotation

marks omitted). Courts must also interpret the text

by reference to related provisions of the statute and

the structure of the FAA. And the relevant language

in Section 1—“other class of workers engaged in foreign or interstate commerce”—is further cabined by

“the application of the maxim ejusdem generis” because it is a “residual phrase, following, in the same

sentence, explicit reference to ‘seamen’ and ‘railroad

employees.’” Circuit City, 532 U.S. at 114.

Under these principles, the phrase “class of workers engaged in foreign or interstate commerce”—at

the time of the FAA’s enactment in 1925—required

that the work performed by the workers involve actual

transportation across state or national borders. See,

e.g., Hamrick v. Partsfleet, LLC, 1 F.4th 1337, 1350

(11th Cir. 2021) (citing Rittmann v. Amazon.com, Inc.,

971 F.3d 904, 926 (9th Cir. 2020) (Bress, J., dissenting)). The class of workers to which Saxon belongs

does not meet that requirement.

Saxon cannot avoid arbitration under the FAA for

the additional and independent reason that the residual clause is limited to classes of workers whose duties

center on interstate movement. Merely incidental

crossing of state or national borders does not suffice.

Then-Judge Barrett explained that, for a class of

workers to perform work analogous to “seamen” and

“railroad employees,” “interstate movements of goods”

must be “a central part of the class members’ job description.” Wallace v. Grubhub Holdings, Inc., 970

F.3d 798, 801 (7th Cir. 2020).

5

The contrary approach by the court below creates

serious practical problems. If adopted, it would significantly increase litigation over whether the FAA applies to a broad and indeterminate array of workers.

As a result, wide sectors of the economy could be deprived of the benefits secured by the FAA, including

lower costs and greater efficiency. Still more businesses and workers will face uncertainty over whether

the FAA governs their arbitration agreements. And

the increased costs of litigating both the applicability

of the Section 1 exemption, and, if necessary, the merits in court would be passed on in the form of decreased payments to workers or increased costs to consumers.

ARGUMENT

I.

Section 1’s Narrow Residual Clause Is Limited To Classes Of Workers Who Actually

And Regularly Engage In Transportation

Across State Or National Borders.

A. The Residual Clause Must Be Interpreted In Accordance With Its Plain

Meaning When Enacted And The Structure Of The FAA.

The FAA’s principal substantive provision, Section 2, provides that an arbitration agreement in “a

contract evidencing a transaction involving commerce

* * * shall be valid, irrevocable, and enforceable.” 9

U.S.C. § 2 (emphasis added). This Court has instructed that “involving commerce” must be read “expansively” to reach all arbitration agreements within

Congress’s commerce power. Allied-Bruce, 513 U.S. at

274.

6

Section 1 creates a limited exception to this broad

coverage, providing that the FAA’s federal-law protections for arbitration agreements do not apply to “contracts of employment of seamen, railroad employees,

or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. In contrast to the

expansive reach of Section 2, the Section 1 exemption

requires a “narrow construction” and “precise

reading.” Circuit City, 532 U.S. at 118-19.

This Court’s prior decisions specify several interpretive principles that inform the proper “narrow” and

“precise reading.”

First, the Section 1 exemption must be interpreted

based on the “ordinary meaning” of the statutory text

“at the time Congress enacted the statute” in 1925.

New Prime, 139 S. Ct. at 539 (alterations and

quotation marks omitted). That reflects the “fundamental canon of statutory construction that words

generally should be interpreted as taking their ordinary, contemporary, common meaning * * * at the

time Congress enacted the statute.” Wisconsin Cent.

Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018)

(quotation marks omitted). “Congress alone has the

institutional competence, democratic legitimacy, and

(most importantly) constitutional authority to revise

statutes in light of new social problems and preferences. Until it exercises that power, the people may

rely on the original meaning of the written law.” Ibid.;

see also New Prime, 139 S. Ct. at 539 (recognizing the

“reliance interests in the settled meaning of a statute”).

Second, “‘the words of a statute must be read in

their context and with a view to their place in the

overall statutory scheme.’” Parker Drilling Mgmt.

Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1888 (2019)

7

(quoting Roberts v. Sea-Land Servs., Inc., 566 U.S. 93,

101 (2012)). In New Prime, for example, this Court

looked to “a neighboring term in the statutory text” to

inform its interpretation of the phrase “contract of employment” in Section 1. 139 S. Ct. at 540-41.

Third, with respect to Section 1’s residual clause

in particular, the Court has instructed that the clause

also should be read narrowly because of “the maxim

ejusdem generis, the statutory canon that where general words follow specific words in a statutory enumeration, the general words are construed to embrace

only objects similar in nature to those objects enumerated by the preceding specific words.” Circuit City, 532

U.S. at 114-15 (quotation marks omitted); cf. Epic Sys.

Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018) (“[W]here,

as here, a more general term follows more specific

terms in a list, the general term is usually understood

to ‘embrace only objects similar in nature to those

objects enumerated by the preceding specific words.’”)

(quoting Circuit City, 532 U.S. at 115).

Here, the phrase “any other class of workers engaged in foreign or interstate commerce” is the third

entry in a list, following the enumerated terms “seamen” and “railroad employees.” 9 U.S.C. § 1. As Circuit City explains, the residual clause “should be read

to give effect to the terms ‘seamen’ and ‘railroad employees,’ and should itself be controlled and defined by

reference to the enumerated categories of workers

which are recited just before it.” 532 U.S. at 115. In

other words, the residual clause must be construed

narrowly to reach only classes of workers that are similar—in terms of their engagement with foreign or interstate commerce—to the enumerated groups of “seamen” and “railroad employees.”

8

B. The Text And Structure Of The FAA

Demonstrate That Saxon Is Not Included

Within A “Class Of Workers Engaged In

* * * Interstate Commerce.”

The ramp agents supervised by respondent Saxon,

and occasionally Saxon herself, loaded and unloaded

luggage on and off airplanes. For two independent

reasons, that work does not qualify for the narrow

Section 1 exemption.

To begin with, Section 1’s exclusion encompasses

only classes of workers who engage in actual transportation across state or national borders. As then-Judge

Barrett has put it, engaging in foreign or interstate

commerce requires “workers [to] be connected not

simply to the goods but to the act of moving those

goods across state or national borders.” Wallace, 970

F.3d at 802 (emphasis added); see also Hamrick, 1

F.4th at 1350. Yet it is undisputed that neither rampagent supervisors like Saxon nor ramp agents themselves ever transport baggage across state lines in

performing their work.

Section 1 also requires the crossing of state or national lines to be a “central part” of the work performed by the class of workers. Wallace, 970 F.3d at

801. Occasional or incidental border crossing does not

qualify. That follows from what it means to be “engaged in foreign or interstate commerce” in a similar

fashion to “seamen” and “railroad employees,” 9

U.S.C. § 1, “whose occupations are centered on the

transport of goods in interstate or foreign commerce,”

Wallace, 970 F.3d at 802.2

2 Because the ramp agents Saxon supervised sometimes handled

“commercial” or “freight” cargo, Pet. App. 3a, 8a, the Court does

9

1. The residual clause is limited to classes of

workers responsible for transporting goods

across state or national borders.

Each of the tools that the Court has employed to

interpret the Section 1 exemption’s residual clause—

the text, related provisions, and the exemption’s more

specific terms—point in the same direction: the residual clause requires that the class of workers as a

whole actually engages in transportation “between

points in one state (or country) and points in another

state (or country).” Hamrick, 1 F.4th at 1350 (emphasis added) (citing Rittmann, 971 F.3d at 926 (Bress, J.,

dissenting)).

a. At the time the FAA was enacted, “engaged” in

an activity meant to be “occupied” or “employed” at it.

Webster’s New International Dictionary (1st ed.

1909); see also Webster’s Collegiate Dictionary (2d ed.

1919) (same); The Desk Standard Dictionary of the

English Language 276 (new ed. 1922) (defining “engage” as “[t]o bind or obtain by promise”). Congress’s

not have occasion in this case to address the dispute among the

lower courts over whether Section 1 is limited to classes of workers who transport goods, and does not include those who

transport passengers and their effects. Compare, e.g., Tyler v.

Uber Techs., Inc., 2020 WL 5569948, at *5 (D.D.C. Sept. 17,

2020); Heller v. Rasier, LLC, 2020 WL 413243, at *6-9 (C.D. Cal.

Jan. 7, 2020); Kowalewski v. Samandarov, 590 F. Supp. 2d 477,

484 (S.D.N.Y. 2008) (all holding that the residual clause does not

apply to workers who transport passengers), with Singh v. Uber

Techs., Inc., 939 F.3d 210, 219-26 (3d Cir. 2019) (holding that

Section 1 is not limited to workers who transport goods rather

than passengers); Osvatics v. Lyft, Inc., 535 F. Supp. 3d 1, 13-14

(D.D.C. 2021) (same).

10

use of the word “engaged” therefore focuses the inquiry on the particular activities that the class of

workers is tasked with performing.

“Interstate commerce,” in turn, referred to actual

transportation across state lines. Black’s Law Dictionary, for example, defined “interstate commerce” as

“commerce between two states,” specifically—“traffic,

intercourse, commercial trading, or [] transportation”

“between or among the several states of the Union, or

from or between points in one state and points in another state.” Black’s Law Dictionary 651 (2d ed. 1910)

(emphasis added). Another contemporaneous legal

dictionary defined “interstate commerce” as “commercial transactions * * * between persons resident in different States of the Union, or carried on by lines of

transport extending into more than one State.” The

Century Dictionary & Cyclopedia (1914).

Put together, then, to be a member of the “class of

workers engaged in * * * interstate commerce” in 1925

meant to be part of a group of workers actually “employed” or “occupied” in the “traffic” or “transportation” of goods “between or among the several states.”

See Rittmann, 971 F.3d at 926 (Bress, J., dissenting)

(observing that contemporary sources confirm that to

be “engaged in interstate commerce” within the meaning of that phrase at the time of the Federal Arbitration Act’s enactment requires “transporting goods

across state lines”); see also Hamrick, 1 F.4th at 1350

(reaching the same conclusion and citing Judge

Bress’s dissent).

Precedent confirms this common understanding of

what it means to be engaged in foreign or interstate

commerce. This Court has emphasized that while “‘in

commerce’ does not, of course, necessarily have a uniform meaning whenever used by Congress,” “the

11

phrase ‘engaged in commerce’” generally “indicat[es]

a limited assertion of federal jurisdiction.” United

States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 277,

280, 283 (1975) (emphasis added); see also Circuit

City, 532 U.S. at 115, 118 (recognizing that the term

“engaged in” is far narrower than other terms relating

to Congress’s commerce power, such as “affecting” or

“involving.”).

Here, where “engaged in” is combined with a specific reference to “foreign or interstate commerce,” the

requirement that the class of workers be engaged in

transportation across state or national boundaries is

clear.3

b. Related provisions of the statute confirm that

“engaged in foreign or interstate commerce” requires

actual movement across borders. Section 1 includes

several definitions before it creates the exemption at

issue here—including a broad definition of “commerce.” “Commerce,” the provision states in pertinent

part, “means commerce among the several States or

with foreign nations.” 9 U.S.C. § 1.

Section 2’s coverage of “transactions involving

commerce,” 9 U.S.C. § 2, uses the defined term “commerce”—thereby incorporating Section 1’s definition.

Congress could have similarly incorporated the defined term in the residual clause, by stating “any other

3 Saxon’s effort to invoke the Section 1 exclusion suffers from an

even more fundamental defect: engaging in interstate or foreign

commerce requires that a worker transport something. The

transfer of luggage from the tarmac onto an airplane does not

constitute “transportation” as that term was commonly used in

1925. See Southwest Br. 17 (citing Black’s Law Dictionary 1168

(2d ed. 1910); United States v. Ohio Oil Co., 234 U.S. 548, 562

(1914)).

12

class of workers engaged in commerce.” But Congress

instead employed different language in the residual

clause—“engaged in foreign or interstate commerce.” 9

U.S.C. § 1 (emphasis added). That choice emphasizes

the requirement of a connection between “engaged in”

and “foreign or interstate commerce”—and further

underlines the clause’s restrictive scope. See, e.g., Collins v. Yellen, 141 S. Ct. 1761, 1782 (2021) (Congress

“acts intentionally” when it “includes particular language in one section of a statute but omits it in another section of the same Act”). For the reasons discussed above, the plain meaning of those terms limits

the residual clause to classes of workers engaged in

transportation across state or national borders.

c. The ejusdem generis principle further supports

limiting the residual clause to classes of workers engaged in cross-border transportation. That is the type

of work that Congress in 1925 understood the classes

of “seamen” and “railroad employees” to perform.

At the time of the FAA’s enactment, railroad employees and maritime workers routinely and typically

moved goods across long distances and state or national borders. See Paul Stephen Dempsey, Transportation: A Legal History, 30 Transp. L.J. 235, 275

(2003).

For example, one study reported that in 1920, the

average freight haul by railroad was 308 miles. See

L.E. Peabody, Forecasting Future Volume of Railway

Traffic, in 66 Railway Age 899, 900 (Samuel O. Dunn

et al. eds., 1924); see also, e.g., Thirty-Third Annual

Report on the Statistics of Railways in the United

States 37 (Interstate Commerce Comm., Bureau of

Statistics 1933) (in 1919, the average freight haul of a

Class I railroad traveled 178.29 miles).

13

Another study reported that the average freight

ship haul shortly after the Act’s enactment was 660

miles. Harold Barger, The Transportation Industries,

1889-1946: A Study of Output, Employment and

Productivity 128 (1951).

The “typical ‘seamen’ and ‘railroad employees’” of

the 1920s thus “actually engage[d] in interstate or international commercial transportation.” Hamrick, 1

F.4th at 1351.

In sum, the plain text of the residual clause, its relationship to other parts of the statutory text, and its

link to the enumerated terms “seamen” and “railroad

employees” all lead to the same conclusion: The residual clause is limited to classes of workers responsible

for transporting goods across state or national borders. Because Saxon does not belong to such a class,

she is not exempt from the FAA’s coverage.

2. A class of workers is covered by the residual clause only if actual transportation

across state or national borders is a central

part of the workers’ job description.

In addition, the exemption’s residual clause applies only if transportation across state or national

borders is central to the work performed by the relevant class of workers.

As then-Judge Barrett has explained, Congress

viewed seamen and railroad employees as workers

“whose occupations [we]re centered on the transport of

goods in interstate and foreign commerce.” Wallace,

970 F.3d at 802 (emphasis added); see also page 8, supra.

14

Under the residual clause, therefore, a party seeking to avoid the FAA’s coverage must also “demonstrate that the interstate movement of goods is a central part of the job description of the class of workers

to which they belong.” Wallace, 970 F.3d at 803; see

also Eastus v. ISS Facility Servs., Inc., 960 F.3d 207,

210 (5th Cir. 2020) (workers must “engage in the

movement of goods in interstate commerce in the

same way that seamen and railroad workers are”)

(quotation marks omitted).

Applying this standard, the First and Ninth Circuits have agreed, for example, that rideshare drivers

(such as those who use the Uber and Lyft platforms to

offer rides) do not fall within the Section 1 exemption

because they overwhelmingly provide local, intrastate

rides. See Cunningham v. Lyft, Inc., 17 F.4th 244, 25253 (1st Cir. 2021); Capriole v. Uber Techs., Inc., 7

F.4th 854, 865-66 (9th Cir. 2021). It “cannot even arguably be said” that rideshare drivers and other local

workers, unlike seamen and railroad employees, are a

class of “workers primarily devoted to the movement

of goods and people beyond state boundaries.” Cunningham, 17 F.4th at 253. Or, as the Ninth Circuit

similarly put it, such local workers, even if they occasionally cross state lines, stand in stark “contrast” to

“seamen and railroad workers,” for whom “the interstate movement of goods and passengers over long distances and across national or state lines is an indelible

and ‘central part of the job description.’” Capriole 7

F.4th at 865 (quoting Wallace, 970 F.3d at 803).

Limiting the residual clause to those workers

whose engagement with foreign or interstate commerce mirrors that of seamen and railroad employees

is not just required by the text and structure of the

15

FAA. It also ensures that Section 1’s narrow exemption does not sweep in countless workers who engage

in “incidental” interstate transportation, such as “the

interstate ‘transportation’ activities of * * * a pizza delivery person who delivered pizza across a state line

to a customer in a neighboring town.” Hill v. Rent-ACenter, Inc., 398 F.3d 1286, 1290 (11th Cir. 2005)

(holding that Section 1 did not exempt an account

manager for a rent-to-own company who occasionally

crossed the border between Georgia and Alabama in

delivering furniture and other items to customers).

C. The Historical Context Of Section 1 Further Confirms Its Narrow Reach.

The context in which Congress enacted Section 1

provides strong additional support for limiting Section

1’s exemption to classes of workers responsible for

transporting goods across state or national boundaries—the role performed by “seamen” and “railroad

employees.”

This Court has recognized that “seamen” and

“railroad employees” were excluded from the Act

because “[b]y the time the FAA was passed, Congress

had already enacted federal legislation providing for

the arbitration of disputes between seamen and their

employers”; “grievance procedures existed for railroad

employees under federal law”; “and the passage of a

more comprehensive statute providing for the

mediation and arbitration of railroad labor disputes

was imminent.” Circuit City, 532 U.S. at 121 (citing,

respectively, the Shipping Commissioners Act of 1872,

17 Stat. 262; Transportation Act of 1920, 41 Stat. 456;

and Railway Labor Act of 1926, 44 Stat. 577).

Although “the legislative record on the § 1

exemption is quite sparse,” what little there is

16

“suggest[s] that the exception may have been added in

response to the objections of [Andrew Furuseth,] the

president of the International Seamen’s Union of

America.” Circuit City, 532 U.S. at 119; see also

United Elec., Radio & Mach. Workers v. Gen. Elec. Co.,

233 F.2d 85, 99 (1st Cir. 1956); Tenney Eng’g, Inc. v.

United Elec. Radio & Mach. Workers, 207 F.2d 450,

452 (3d Cir. 1953); Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration: Hearing on S. 4213 and S. 4214

Before a Subcomm. of the Senate Comm. on the

Judiciary, 67th Cong., 9 (1923) (statement of W.H.H.

Platt, Am. Bar Ass’n). Furuseth argued in part that

seamen’s contracts should be excluded because they

“constitute a class of workers as to whom Congress

had long provided machinery for arbitration.” Tenney,

207 F.2d at 452; see also Matthew W. Finkin, “Workers’ Contracts” under the United States Arbitration

Act: An Essay in Historical Clarification, 17 Berkeley

J. Emp. & Lab. L. 282, 300-02 (1996) (quoting Andrew

Furuseth, Analysis of H.R. 13522 (1923)).4

Congress’s inclusion of “railroad employees” in

Section 1 appeared to stem from the same concerns.

Congress had previously enacted special disputeresolution procedures for that industry, too, in

response to a long history of labor disputes. Indeed, by

the time the FAA was enacted, mediation and

4 While this Court recognized in Circuit City that “the fact that a

certain interest group sponsored or opposed particular

legislation” is not a basis for discerning the meaning of a statute,

it pointed to the history as context for its conclusion that the

“residual exclusion” of “‘any other class of workers engaged in

foreign or interstate commerce’” is “link[ed] to the two specific,

enumerated types of workers identified in the preceding portion

of the sentence.” Circuit City, 532 U.S. at 120-21.

17

arbitration had been central features of the railroad

dispute resolution process for nearly forty years. 5

Congress thus decided to carve out narrow classes

of workers so as not to “unsettle established or

developing statutory dispute resolution schemes

covering specific workers.” Circuit City, 532 U.S. at

120-21. The residual category of other transportation

workers was included for a similar reason. That is,

Congress contemplated extending similar legislation

to other categories of workers engaged in transportation across state or national lines: “Indeed, such

legislation was soon to follow, with the amendment of

the Railway Labor Act in 1936 to include air carriers

and [certain of] their employees.” Id. at 121.6

This history supports interpreting Section 1’s residual clause in accordance with its plain meaning

and requiring a close link to the enumerated terms

that proceed it. Doing so reflects Congress’s decision

“to ensure that workers in general would be covered

5 See, e.g., Act of October 1, 1888, 25 Stat. 501 (providing for

voluntary arbitration); Erdman Act of June 1, 1898, 30 Stat. 424,

ch. 370, §§ 2, 3 (establishing a more detailed procedure involving

both mediation and arbitration); Newlands Act of July 15, 1913,

38 Stat. 103, 45 U.S.C. § 101 et seq. (establishing a permanent

Board of Mediation and Conciliation); Title III of the

Transportation Act of 1920, 41 Stat. 456, 469 (establishing a

Railroad Labor Board and more detailed provisions for resolution

of railroad labor disputes); see also Gen. Comm. of Adjustment of

Bhd. of Locomotive Eng’rs for Missouri-Kansas-Texas R.R. v.

Missouri-Kansas-Texas R. Co., 320 U.S. 323, 328 n.3 (1943)

(summarizing the “fifty years of evolution” of the railroad dispute

resolution framework).

6 As non-unionized employees, Saxon and other ramp-agent su-

pervisors are not subject to the alternative dispute resolution

mechanisms found in the Railway Labor Act. See Pet. App. 20a.

18

by the provisions of the FAA, while reserving for itself” the ability to regulate separately “those engaged

in transportation” across state or national borders in

the same manner as maritime and railroad workers.

Circuit City, 532 U.S. at 121.

D. The Court Of Appeals Erred By Relying

On The Meaning Of FELA To Support Its

Broad Interpretation Of The Residual

Clause.

The decision below rested heavily on broader interpretations given to “engaged in commerce” language in the Federal Employers’ Liability Act of 1908

(FELA). See Pet. App. 10a, 16a-19a. For example, the

court of appeals borrowed from the FELA context the

notion that work carried out by classes of workers who

do not actually transport anything can nonetheless be

“so closely related to interstate transportation as to be

practically a part of it.” Pet. App. 10a (quoting Balt. &

Ohio S.W. R.R. v. Burtch, 263 U.S. 540, 544 (1924)).

And the court similarly borrowed from the FELA context its conclusion that a “railroad employee” was understood to include a rail worker who did not accompany the trains interstate. Pet. App. 10a, 15a-18a.

That reliance on FELA is wrong for two reasons.

First, FELA does “not share the FAA’s text,

‘context,’ or ‘purpose.’” Rittmann, 971 F.3d at 931

(Bress, J., dissenting); see also Hamrick, 1 F.4th at

1348 (“We don’t give ‘in commerce’ or ‘engaged in commerce’ the same meaning it has in the other statutes

just because Congress used the same terms in the

Federal Arbitration Act.”).

Indeed, this Court has cautioned against assuming that “statutory jurisdictional formulations neces-

19

sarily have a uniform meaning whenever used by Congress”—and directed courts to “construe the ‘engaged

in commerce’ language in the FAA with reference to

the statutory context in which it is found and in a

manner consistent with the FAA’s purpose.” Circuit

City, 532 U.S. at 118 (quotation marks omitted).

The language in FELA invoked by the court below

governs the reach of that statute. It provided that

“[e]very common carrier by railroad while engaging in

commerce between any of the several States * * * shall

be liable in damages to any person suffering injury

while he is employed by such carrier in such commerce.” 45 U.S.C. § 51 (1908). The “engaging in commerce” text thus “does not appear in a residual clause

at all, much less in an exception to a general coverage

provision.” Rittmann, 971 F.3d at 931-32 (Bress, J.,

dissenting). It instead serves the role played by the

FAA’s broad definition of its scope—set forth in Section 2—and is not at all analogous to an exemption

from federal protection such as the residual clause.

Moreover, FELA is a “broad remedial statute” intended to protect railroad workers’ substantive rights.

Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S.

557, 562 (1987). That is why, unlike the Section 1

exemption, which requires a “precise reading” and

“narrow construction,” Circuit City, 532 U.S. at 118,

119, the provision determining FELA’s scope has long

been “construed liberally,” Jamison v. Encarnacion,

281 U.S. 635, 640 (1930); see also, e.g., Shanks v. Del.,

Lackawanna & W. R.R., 239 U.S. 556, 558 (1916).

Southwest explains (Br. 17-19), that this Court’s

decisions interpreting “engaged in commerce” language in the Clayton Act and Robinson-Patman Act

require direct participation in interstate commerce rather than a mere “‘nexus’ to commerce.” Gulf Oil Corp.

20

v. Copp Paving Co., 419 U.S. 186, 198 (1974); see also

Am. Bldg. Maint. Indus., 422 U.S. at 283-85. For example, the American Building Maintenance Court

held that “simply supplying localized services to a corporation engaged in interstate commerce” did not satisfy the Clayton Act’s applicable “in commerce” requirement. Ibid.

Those decisions—construing “engaged in commerce” much more narrowly than FELA—further preclude any contention that FELA provides a definitive

guide to interpreting the FAA’s residual clause.

The different structure of Section 1 also weighs

against relying on FELA to determine the meaning of

“engaged in foreign or interstate commerce.” As discussed above (at 11-12), Congress drew a distinction

by not utilizing its defined term “commerce,” and employing instead the limiting phrase “foreign or interstate commerce” in the residual clause—a distinction

that does not exist in FELA. In addition, the FAA’s

references to “seamen” and “railroad employees” also

help “give the § 1 residual clause some of its meaning”

and further distinguish FELA. Rittmann, 971 F.3d at

931 (Bress, J., dissenting).

In sum, each of the tools the Court has employed

to interpret the Section 1 exemption’s residual

clause—the text, related provisions, and the exemption’s more specific terms—points away from relying

on FELA.7

To the extent the Court concludes, contrary to our submission,

that FELA cases have any relevance, it is notable that, even in

the FELA context, railroads and their employees were held not

to be engaged in interstate commerce under FELA when they

performed intrastate work that was not integrated with an interstate trip. See, e.g., McCluskey v. Marysville & Northern Ry. Co.,

7

21

Second, the Seventh Circuit’s focus on who qualified as a “railroad employee” at the time of the FAA’s

enactment asks the wrong question for purposes of the

residual clause, which instead focuses on whether the

work performed by the relevant class of workers requires them “to engage in the movement of goods in

interstate commerce in the same way that seamen

and railroad workers are.” Eastus, 960 F.3d at 210

(quotation marks omitted).

Reasoning exclusively by analogy to the legal definitions of the enumerated terms under other statutes

also threatens incoherent results. As Southwest explains (Br. 26-27), different statutes defined “railroad

employees” differently. For example, the Hours of Service Act § 1, 34 Stat. 1415, 1416 (1907), and Boiler Inspection Act § 1, 36 Stat. 913, 913 (1911), defined the

term more narrowly than in the FELA context. The

decision below offered no justification for picking the

broadest possible meaning.

If anything, the narrower interpretation is far

more harmonious with the technical meaning of “seaman,” which is unambiguously narrow. In the 1920s,

“seaman” was a “maritime term of art” that meant “a

person * * * employed on board a vessel in furtherance

of its purpose.” McDermott Int’l, Inc. v. Wilander, 498

U.S. 337, 342, 346 (1991). By 1927, with passage of

the Longshore and Harbor Workers’ Compensation

Act, “Congress established a clear distinction between

land-based and sea-based maritime workers,” such

that “seamen” did not include longshoremen, who

243 U.S. 36, 38-40 (1917); see also Rittmann, 971 F.3d at 932-33

(Bress, J., dissenting) (discussing other examples of pre-1925

FELA cases in which railroad employees were held not to be engaged in interstate commerce).

22

loaded and unloaded vessels in port. Id. at 347-48; see

also id. at 348 (“Whether under the Jones Act or general maritime law, seamen do not include land-based

workers.”); Eastus, 960 F.3d at 211 (“Further, there is

a distinction between handling goods and moving

them in Section 1 of the FAA’s enumeration of seamen

and not longshoremen, who are the workers who load

and unload ships.”).8

Even crediting the Seventh Circuit’s rationale that

the meaning of “railroad employees” under FELA is

broad, that offers little guidance into the meaning of

the residual clause. The meaning of “seamen” under

federal maritime law is narrow, and at best those definitions therefore would point in opposite directions.

The bottom line is that the text and structure of the

residual clause carry the day. And they limit the residual clause to classes of workers responsible for

transportation across state or national borders.

II. An Improperly Expansive Construction Of

The Residual Clause Exemption Will Harm

Businesses And Workers And Burden

Courts.

Failing to cabin Section 1’s residual clause in accordance with its plain meaning will produce three

significant adverse consequences. It will generate considerable complexity and uncertainty, requiring timeconsuming and costly litigation over the FAA’s application—thereby undermining one of Congress’s key

goals in enacting the FAA. It will result in unequal

Southwest explains in detail why the court of appeals erred in

reasoning that land-based maritime workers could have been

considered “seamen” in 1925. See Southwest Br. 24-26, 42-44.

8

23

treatment of similar workers. And it will deprive businesses and individuals from securing the benefits of

arbitration protected by the FAA.

1. This Court has long recognized “Congress’ clear

intent, in the [Federal] Arbitration Act, to move the

parties to an arbitrable dispute out of court and into

arbitration as quickly and easily as possible.” Moses

H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460

U.S. 1, 22 (1983). Straightforward, easily administrable rules are therefore especially important in the context of the FAA.

Thus, the Circuit City Court emphasized that

Section 1 should not be interpreted in a manner that

introduces “considerable complexity and uncertainty

* * *, in the process undermining the FAA’s

proarbitration purposes and ‘breeding litigation from

a statute that seeks to avoid it.’” 532 U.S. at 123

(quoting Allied-Bruce, 513 U.S. at 275).

Interpreting the residual clause in accordance

with its plain meaning—requiring that the class of

workers engage in transportation across state lines or

national boundaries as a central part of their job descriptions—produces an easy-to-apply test. It should

not be difficult or factually complex in the mine run of

cases to determine whether a class of workers actually

transports goods across state lines or national boundaries as a central part of their job. For example, it is

clear that neither ramp agents nor ramp-agent supervisors like Saxon do so. And the same is true of countless other classes of workers whose work takes place

in a single location.

The Seventh Circuit’s contrary approach, however, gives rise to complicated line-drawing. See Pet.

App. 10a. If intrastate work can sometimes qualify as

24

engagement in foreign or interstate commerce, then

courts will be forced to decide the circumstances in

which classes of workers who primarily (or even entirely) carry out their work within a single state are

nevertheless somehow sufficiently bound up with interstate transportation to fall under the residual

clause. And the court below offers no standard for

making that determination.

Many other types of airline employees, for example, play roles related to “interstate and international

flights,” Pet. App. 9a. If gate-ramp supervisors are

“engaged in * * * interstate commerce,” what about

the attendants in airport lounges? The baggage handlers at ticket-check-in? The mechanics who service

the airplanes? What of other workers at the airport

generally—such as caterers delivering meals to airplanes, shuttle-bus drivers, cleaning staff, or restaurant and kiosk staff?

As these examples illustrate, a broad interpretation of Section 1’s residual clause like the one adopted

below “suffers from serious problems of practical application.” Rittmann, 971 F.3d at 936 (Bress, J., dissenting). And “[u]ndertaking such confounding inquiries in the context of the FAA is particularly undesirable when the result will inevitably mean more

complex civil litigation over the availability of private

dispute resolution mechanism that is supposed to itself reduce costs.” Id. at 937 (Bress, J., dissenting) (citing Circuit City, 532 U.S. at 123; Allied-Bruce, 513

U.S. at 275).

Indeed, allowing Section 1 to sweep in classes of

workers who are several steps removed from the actual interstate transportation of goods would generate

countless, expensive disputes over the enforceability

of arbitration agreements with workers never before

25

considered to be “engaged in * * * interstate

commerce.” Even if some of the parties’ disputes are

eventually compelled to arbitration, the intervening

litigation over the FAA’s application would severely

undermine the FAA’s purpose of ensuring speedy and

efficient dispute resolution. And this expensive and

time-consuming litigation would burden courts as

well.

Further compounding the costs and delays associated with resolving the FAA’s application under an

overly-expansive reading of the Section 1 exemption

is the risk of court-ordered discovery that threatens to

drag on for months. See Singh, 939 F.3d at 227-28;

Golightly v. Uber Techs., Inc., 2021 WL 3539146, at

*3-4 (S.D.N.Y. Aug. 11, 2021); see also Singh v. Uber

Techs., Inc., --- F. Supp. 3d ----, 2021 WL 5494439, at

*14 (D.N.J. Nov. 23, 2021) (concluding, over two years

after the Third Circuit’s remand and after months of

discovery, that rideshare drivers “are not exempt from

the FAA” under the residual clause), appeal docketed,

No. 21-3234 (3d Cir. Dec. 6, 2021).

2. The Seventh Circuit’s approach also threatens

to “treat[] similarly situated workers unequally.”

Rittmann, 971 F.3d at 936 (Bress, J., dissenting). Because the Section 1 exemption “is focused on classes of

workers,” it should be construed to avoid “the inequitable result that workers performing the same work

are subject to different legal regimes.” Id. at 937 (quotation marks and alterations omitted). Judge Bress

explained why it makes little sense to treat local delivery drivers differently based on whether they work

for a company responsible only for intrastate transportation of the good being delivered or for a company

that handles both intrastate and interstate transportation. Id. at 937-38.

26

The Seventh Circuit’s approach would create those

very “inequities.” Rittmann, 971 F.3d at 938 (Bress,

J., dissenting). For example, the court suggested that

the work of ramp agents could be distinguished from

the ticketing and gate agents at issue in Eastus. Pet.

App. 19a. But both “handle passengers’ luggage”

within the airport, Eastus, 960 F.3d at 208, and the

Seventh Circuit offered no principled distinction between placing luggage on an airplane as opposed to

placing it “on conveyor belts” for “security screening

and loading,” ibid.

Similarly unjustifiable distinctions between classes of workers are not hard to imagine. For example,

the First Circuit has left open the question whether

Section 1 exempts from the FAA a class of workers

that “servic[es] cars or trucks used to make deliveries”

of goods that have moved across state or national

lines. Waithaka v. Amazon.com, Inc., 966 F.3d 10, 20

n.9 (1st Cir. 2020). But—apart from the fact that such

an approach takes too narrow an approach to defining

a “class of workers”—deeming that subcategory of

workers to be exempt from the FAA on the theory that

the workers are “‘practically a part’ of interstate

transportation,” ibid., would yield inconsistent results. Some groups of auto mechanics would be exempt from the FAA while others would not, even

though all of those mechanics perform exactly the

same type of local work. The upshot of the Seventh

Circuit’s expansive interpretation of the residual

clause is that courts will be forced into an endless series of inquiries that produce different results “for reasons that have nothing to do with the on-the-ground

work [the workers] perform.” Rittmann, 971 F.3d at

938 (Bress, J., dissenting).

27

3. The failure to give Section 1 the proper narrow

construction carries another significant adverse

consequence. It will deprive businesses and

individuals from obtaining the benefits of arbitration

secured by the FAA. Absent that uniform federal protection, whether businesses and workers can invoke

arbitration agreements will turn on state law and

vary state by state. And the overall result will be that

more disputes are resolved in court rather than in arbitration, because the FAA’s protection against statelaw rules that disfavor arbitration will no longer apply.

This Court has repeatedly recognized the “real

benefits” of “enforcement of arbitration provisions,”

Circuit City, 532 U.S. at 122-23, which include “‘lower

costs, greater efficiency and speed, and the ability to

choose expert adjudicators to resolve specialized

disputes,’” Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407,

1416 (2019) (quoting Stolt-Nielsen S.A. v.

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

accord Allied-Bruce, 513 U.S. at 280 (one of the

“advantages” of arbitration is that it is “cheaper and

faster than litigation”) (quotation marks omitted); 14

Penn Plaza LLC v. Pyett, 556 U.S. 247, 257 (2009)

(“Parties generally favor arbitration precisely because

of the economics of dispute resolution.”).

These advantages extend to agreements between

businesses and workers. The Court has been “clear in

rejecting the supposition that the advantages of the

arbitration process somehow disappear when

transferred to the employment context.” Circuit City,

532 U.S. at 123. To the contrary, this Court has

emphasized that the lower costs of arbitration

compared to litigation “may be of particular

importance in employment litigation, which often

28

involves smaller sums of money than disputes

concerning commercial contracts.” Ibid.

Empirical research confirms these observations.

Scholars and researchers agree, for example, that the

average employment dispute is resolved up to twice as

quickly in arbitration as in court. See Lewis L.

Maltby, Private Justice: Employment Arbitration and

Civil Rights, 30 Colum. Hum. Rts. L. Rev. 29, 55

(1998) (average resolution time for employment

arbitration was 8.6 months—approximately half the

average resolution time in court); see also, e.g., Nam

D. Pham, Ph.D. & Mary Donovan, Fairer, Better,

Faster: An Empirical Assessment of Employment

Arbitration, NDP Analytics 5, 11-12 (2019), https://

bit.ly/3GMVyxV (reporting that average resolution for

arbitration was approximately 100 days faster than

litigation); Michael Delikat & Morris M. Kleiner, An

Empirical Study of Dispute Resolution Mechanisms:

Where Do Plaintiffs Better Vindicate Their Rights?, 58

Disp. Resol. J. 56, 58 (Nov. 2003–Jan. 2004) (reporting

findings that arbitration was 33% faster than

analogous litigation); David Sherwyn, Samuel

Estreicher, & Michael Heise, Assessing the Case for

Employment Arbitration: A New Path for Empirical

Research, 57 Stanford L. Rev. 1557, 1573 (2005)

(collecting studies reaching similar conclusions).

Further, “there is no evidence that plaintiffs fare

significantly better in litigation.” Sherwyn, 57 Stanford L. Rev. at 1578. A 2019 study released by the

Chamber’s Institute for Legal Reform found that

employees were three times more likely to win in

arbitration than in court. Pham, at 5-7 (surveying

more than 10,000 employment arbitration cases and

90,000 employment litigation cases resolved between

2014 to 2018). The same study found that employees

29

who prevailed in arbitration “won approximately

double the monetary award that employees received

in cases won in court.” Id. at 5-6, 9-10; see also

Theodore J. St. Antoine, Labor and Employment

Arbitration Today: Mid-Life Crisis or New Golden

Age?, 32 Ohio St. J. on Disp. Resol. 1, 16 (2017)

(arbitration is “favorable to employees as compared

with court litigation”).

Earlier scholarship likewise reports a higher

employee-win rate in arbitration than in court. See

Sherwyn, 57 Stanford L. Rev. at 1568-69 (observing

that, once dispositive motions are taken into account,

the actual employee-win rate in court is “only 12% [to]

15%”) (citing Maltby, 30 Colum. Hum. Rts. L. Rev. at

47) (of dispositive motions granted in court, 98% are

granted for the employer); Nat’l Workrights Inst.,

Employment Arbitration: What Does the Data Show?

(2004), https://bit.ly/3IVddnP (concluding that

employees were 19% more likely to win in arbitration

than in court).

Thus, “there is no evidence that plaintiffs fare

significantly better in litigation [than in arbitration].”

St. Antoine, 32 Ohio St. J. on Disp. Resol. at 16

(quotation marks omitted; alterations in original).

Rather, arbitration is generally “favorable to

employees as compared with court litigation.” Ibid.;

see also Maltby, 30 Colum. Hum. Rts. L. Rev. at 46.

In sum, the Seventh Circuit’s overbroad reading of

Section 1 would impose real costs on businesses. Not

only is litigation more expensive than arbitration for

businesses and workers alike, but the uncertainty

stemming from the lower court’s approach would engender additional expensive disputes over the enforceability of arbitration agreements with workers. And

these increased litigation costs would not be borne by

30

businesses alone. Businesses would, in turn, pass on

these litigation expenses to consumers (in the form of

higher prices) and to workers (in the form of lower

compensation).

CONCLUSION

The judgment of the court of appeals should be reversed.

31

Respectfully submitted.

DARYL JOSEFFER

PAUL LETTOW

U.S. Chamber

Litigation Center

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

Counsel for Amicus

Curiae the Chamber

of Commerce of the

United States of

America

ERICA KLENICKI

NAM Legal Center

733 Tenth Street, N.W.

Suite 700

Washington, DC 20001

(202) 637-3100

Counsel for Amicus

Curiae the National

Association of Manufacturers

JANUARY 2022

ANDREW J. PINCUS

Counsel of Record

ARCHIS A. PARASHARAMI

DANIEL E. JONES

CARMEN N. LONGORIA-GREEN

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amici Curiae