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

No. 21-309

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------SOUTHWEST AIRLINES COMPANY,

Petitioner,

v.

LATRICE SAXON,

individually and on behalf of all similarly situated,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

---------------------------------♦--------------------------------BRIEF OF THE NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------MICHAEL L. FOREMAN

Counsel of Record

PENN STATE LAW

CIVIL RIGHTS APPELLATE CLINIC

329 Innovation Blvd., Suite 118

University Park, Pennsylvania 16802

(814) 865-3832

mlf25@psu.edu

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

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

iii

INTRODUCTION AND STATEMENT OF INTEREST OF AMICUS CURIAE .......................

1

SUMMARY OF THE ARGUMENT .....................

1

ARGUMENT ........................................................

3

I.

II.

The Plain Language of the Residual

Clause in Section 1 of the Federal Arbitration Act Exempts Airline Cargo Loaders

Who Load and Unload Goods for Transport

in the Flow of Interstate Commerce..........

3

A. Section 1’s reference to seamen, railroaders, and their relationship to interstate commerce exemplifies the type

of work exempted from the FAA..........

5

B. The residual clause exempts workers,

like those in Ms. Saxon’s class, who

perform necessary loading and unloading of goods for travel in interstate commerce ....................................

9

Finding that Ms. Saxon and the Narrow

Class She Represents are Exempt is Consistent with the Express Language of the

FAA and Furthers the Legislative Purpose

of the Act .................................................... 12

ii

TABLE OF CONTENTS—Continued

Page

A. Recognizing that airline cargo loaders

are exempt under Section 1 of the FAA

upholds the legislative intent to prevent labor disruptions in the flow of

interstate commerce ............................ 12

B. Ms. Saxon’s class of airline cargo

loader is narrow and the only class before the Court ...................................... 16

III.

The Seventh Circuit’s Analysis Mirrored

Other Circuits and Properly Held Ms.

Saxon’s Class Exempt from the FAA ......... 18

CONCLUSION..................................................... 21

iii

TABLE OF AUTHORITIES

Page

CASES

Allen v. Hallet, 1 F. Cas. 472 (No. 223) (S.D.N.Y.

1849) ..........................................................................7

Balt. & Ohio Sw. R. R. Co. v. Burtch, 263 U.S. 540

(1924) .........................................................................8

Carmona v. Domino’s Pizza, LLC, No. 21-55009,

2021 U.S. App. LEXIS 38045 (9th Cir. Dec. 23,

2021) .................................................................... 8, 18

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

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

Citizens United v. Fed. Election Comm’n, 558

U.S. 310 (2010) ........................................................17

Delaware, L. & W.R. Co. v. Yurkonis, 238 U.S. 439

(1915) .........................................................................5

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

(5th Cir. 2020)..........................................................19

Hill v. Rent-A-Ctr., 398 F.3d 1286 (11th Cir.

2005) ........................................................................19

Indus. Acc. Comm’n of State of Cal. v. Payne, 259

U.S. 182 (1922) ..........................................................4

Lagos v. United States, 138 S. Ct. 1684 (2018) ........ 4, 8

McWilliams v. Logicon, Inc., 143 F.3d 573 (10th

Cir. 1998) .................................................................21

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

(2019) .............................................................. passim

Palcko v. Airborne Express, Inc., 372 F.3d 588 (3d

Cir. 2004) ............................................................. 8, 19

iv

TABLE OF AUTHORITIES—Continued

Page

Pederson v. Delaware, L. & W.R. Co., 229 U.S. 146

(1913) .........................................................................4

Railway Employees’ Dept., A.F. of L. v. Indiana

Harbor Belt R. Co., Decision No. 982, 3 R.L.B.

332 (1922) ..................................................................7

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

Cir. 2020) .................................................................19

Singh v. Uber Techs., Inc., 939 F.3d 219 (3d Cir.

2019) .................................................................... 8, 19

Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st

Cir. 2020) ............................................................. 8, 18

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

(7th Cir. 2020).................................................... 20, 21

Wilson v. The Ohio, 30 F. Cas. 150 (E.D. Pa. 1834)

(No. 17,825) ...............................................................7

STATUTES

41 Stat. 456 ............................................................. 7, 15

45 U.S.C. §§ 151-165 ............................................. 15, 16

45 U.S.C. §§ 181-188 ............................................. 15, 16

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

v

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Benjamin W. Pope, Compiler, Legal Definitions:

A Collection of Words and Phrases as Applied

and Defined by the Courts, Lexicographers

and Authors of Books on Legal Subjects (19191920) ..........................................................................9

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

Black’s Law Dictionary (3d ed. 1933) ....................... 7, 8

Bureau of Transp. Stat., Commercial Aviation in

2020, DATA SPOTLIGHTS (Mar. 4, 2021) ....................14

Bureau of Transp. Stat., Transportation Statistics Annual Report 2020..........................................13

Bureau of Transp. Stat., Transportation Statistics Annual Report 2021..........................................14

Fed. Aviation Admin., FAA Historical Chronology: Civil Aviation and the Federal Government, 1926–1996 (1998) ..........................................13

John Bouvier, Bouvier’s Law Dictionary (1934) ..........6

William Edward Baldwin, Bouvier’s Law Dictionary, Student’s Edition (1928) ..............................6

1

INTRODUCTION AND STATEMENT

OF INTEREST OF AMICUS CURIAE1

Founded in 1985, the National Employment Lawyers Association (“NELA”) is the largest bar association in the country focused on empowering workers’

rights attorneys. NELA and its 69 circuit, state, and

local affiliates have a membership of over 4,000 attorneys who are committed to protecting the rights of

workers in employment, wage and hour, labor, and civil

rights disputes. NELA attorneys litigate daily in every

circuit, giving NELA a unique perspective on how principles announced by courts in employment cases actually play out on the ground. As such, NELA has a

particular interest in ensuring that workers are correctly classified under the auspices of the Federal Arbitration Act and other relevant employment statutes.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

An essential part of Latrice Saxon’s job is picking up luggage and other goods and loading them

onto a Southwest airplane. Without Ms. Saxon physically moving the cargo onto an airplane, the cargo

would never travel through interstate commerce. The

Federal Arbitration Act (“FAA”) exempts from its coverage “contracts of employment of seamen, railroad

1

All parties have consented to the filing of this brief by Email

consent. No counsel for a party has authored this brief in whole

or in part, and no person other than amicus curiae, its members,

and its counsel have made monetary contributions to the preparation or submission of this brief.

2

employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1 (emphasis

added). Workers in Ms. Saxon’s class are included in

the residual clause for three reasons. First, Ms. Saxon’s

class is included under the plain language of the residual clause. Second, recognizing that Ms. Saxon’s class

is exempt fulfills the legislative purpose of the FAA.

Third, in holding that Ms. Saxon’s class is included under the residual clause, the Seventh Circuit’s analysis,

which mirrored that of other circuits,2 properly applied

this Court’s analysis from Circuit City Stores, Inc. v.

Adams, 532 U.S. 105 (2001), and New Prime Inc. v.

Oliviera, 139 S. Ct. 532 (2019).

The issue presented in this case is narrow. Ms.

Saxon’s job title is Ramp Supervisor, with responsibilities including loading and unloading cargo for interstate commerce. Workers in Ms. Saxon’s class are not

gate agents, nor are they analogous to Uber, Lyft, or

Amazon delivery drivers. This case does not involve the

broad issues implicated by a class of delivery drivers

or any worker who does not physically load and unload

cargo. Those cases are not before this Court, as they

present distinct, unique factual situations to be determined at another time. Ms. Saxon is the first point of

contact with the cargo, and her class physically places

the cargo into the flow of commerce. Ms. Saxon’s narrow class of workers is exempt from the FAA.

---------------------------------♦--------------------------------2

See infra at 18-19 (discussing the circuit courts that address the residual clause).

3

ARGUMENT

I.

The Plain Language of the Residual Clause

in Section 1 of the Federal Arbitration Act

Exempts Airline Cargo Loaders Who Load

and Unload Goods for Transport in the

Flow of Interstate Commerce.

Latrice Saxon is an airline cargo loader and a representative of a class of workers who load and unload

goods that travel in the flow of interstate commerce.

This class is necessarily exempt from the FAA under

Section 1, which excludes “contracts of employment of

seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce,”

because their positions are necessary for the flow of

interstate air commerce. 9 U.S.C. § 1. Without Ms.

Saxon’s work, interstate air commerce would cease to

function. Accordingly, Ms. Saxon’s class is “engaged in

foreign or interstate commerce.”

In enacting Section 1, Congress expressly referenced two classes of professions that qualified for the

Section’s exemption: “seamen” and “railroad employees.” 9 U.S.C. § 1. Congress not only referenced these

professions, but also included the residual clause to exempt other comparable workers whose labor was a necessary part of interstate commerce. Southwest and its

supporting amici’s arguments ask the Court to write

the residual clause out of the statute.3 This Court has

3

See infra at 16-18. Ms. Saxon’s class is narrow and does not

implicate workers outside of the direct loading and unloading of

goods for travel in interstate commerce.

4

applied the maxim ejusdem generis to the specific examples in Section 1 to clarify the extent of the class

contemplated in the residual clause. See Circuit City,

532 U.S. at 114-15. When applying ejusdem generis, the

class of work exempted must be similar in nature to

that performed by seamen and railroaders when the

Act was passed. See Circuit City, 532 U.S. at 114-15.

The residual clause, however, cannot be defined by

the commonality between railroads and shipping

alone. Pursuant to the maxim noscitur a sociis, Section

1’s exemption must be construed as a whole, considering the surrounding text and all of its terms. See Lagos

v. United States, 138 S. Ct. 1684, 1688-89 (2018). Accordingly, the common attribute shared by railroaders

and seamen must be interpreted in the context of their

relationship with interstate commerce. See 9 U.S.C. § 1

(specifically exempting “seamen[ ] [and] railroad employees . . . engaged in . . . interstate commerce”). Under “commerce’s” generally accepted meaning at the

time, the common relationship binding the residual

class of workers exempted is the necessity of their

work for the movement of goods in interstate commerce.4 See, e.g., Commerce, Black’s Law Dictionary (2d

4

In contemporaneous disputes, this Court considered the

key element of whether an individual was engaged in “commerce”

was whether the work they performed “was so near to interstate

commerce as to be a part of it.” Indus. Acc. Comm’n of State of

Cal. v. Payne, 259 U.S. 182, 185 (1922) (recognizing that a railcar

repairman injured while working on train cars that were instruments of interstate commerce was himself engaged in interstate

commerce); see also Pederson v. Delaware, L. & W.R. Co., 229

U.S. 146, 150-52 (1913) (recognizing that an engineer repairing a

railroad bridge was engaged in interstate commerce). But see

5

ed. 1910).5 Airline workers in Ms. Saxon’s class perform the necessary loading and unloading of goods for

transit in interstate air commerce. This class of labor

performs work identical to that performed by seamen

and railroad employees at the time the Act was established. See 9 U.S.C. § 1; Brief of Respondent at 13-18,

Southwest Airlines Co. v. Saxon, 142 S. Ct. 638 (2021)

(No. 21-309). Thus, applying this Court’s principles of

statutory construction as articulated in Circuit City

and New Prime, Ms. Saxon’s class is exempt under the

residual clause of the FAA. See Circuit City, 532 U.S.

at 114-15; New Prime, 139 S. Ct. at 539.

A. Section 1’s reference to seamen, railroaders, and their relationship to interstate commerce exemplifies the type of

work exempted from the FAA.

As this Court recognizes, “[i]t’s a fundamental

canon of statutory construction that words generally

should be interpreted as taking their ordinary meaning at the time Congress enacted the statute.” New

Delaware, L. & W.R. Co. v. Yurkonis, 238 U.S. 439, 444 (1915)

(recognizing that a coal miner injured in the process of mining

was not engaged in interstate commerce merely because “the coal

might be or was intended to be used in the conduct of interstate

commerce”).

5

As Southwest expressly acknowledges, at the time, “interstate commerce” was defined as a modification of the more general

term “commerce,” concerning such traffic “between . . . the several

states of the Union.” Interstate Commerce, Black’s Law Dictionary

(2d ed. 1910); see Brief for Petitioner at 6, Saxon, 142 S. Ct. 638

(No. 21-309).

6

Prime, 139 S. Ct. at 539 (internal quotation marks and

citations omitted). Pursuant to this maxim, the class

defined in the residual clause must be interpreted under the definition of its terms at the time the FAA was

enacted. In the early 1900s, “class” as a legal term was

understood as a form of organization, grouping people

or things based on commonality.6 Accordingly, Congress’s use of “class” incorporated its ordinary meaning, intentionally organizing a group of workers based

on shared attributes. Section 1’s “class” then necessarily contemplates the shared attributes of seamen

and railroaders as related to their active engagement

in the flow of interstate commerce. Fortunately, this

Court has already relied on ejusdem generis to determine the extent of the class exempted by the residual

clause. See Circuit City, 532 U.S. at 114-15.

In Circuit City, this Court applied ejusdem generis

to the residual clause to determine that the “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.” Circuit

6

See Class, Black’s Law Dictionary (2d ed. 1910) (“[A] group

of persons or things taken collectively, having certain qualities in

common, and constituting a unit for certain purposes.”) (emphasis

added); see also John Bouvier, Bouvier’s Law Dictionary (1934)

(“A number of persons or things ranked together for some common purpose or as possessing some attribute in common.”) (emphasis added). Compare Class, Bouvier, Bouvier’s Law Dictionary

(1934), with Class, William Edward Baldwin, Bouvier’s Law Dictionary, Student’s Edition (1928) (using the same definition three

years after enactment of the FAA).

7

City, 532 U.S. at 115. At the time of enactment, “seamen” were defined as “persons . . . who are connected

with the ship as such and in some capacity assist in

its conduct.” Seamen, Black’s Law Dictionary (3d ed.

1933). Accordingly, “seamen” included not only members of the ship’s crew who loaded and unloaded cargo,

but also dockworkers who engaged in the same work.

See Brief of Respondent at 16-17, 33-35, Saxon, 142

S. Ct. 638 (2021) (No. 21-309).7

Comparatively, “railroad employees,” as used in

Section 1, was a term lacking a precise definition, as

Southwest acknowledges. See Brief for Petitioner at 6.

Prior to the FAA, the statute governing labor disputes

in the rail industry was the Transportation Act of 1920.

See 41 Stat. 456. Under the Transportation Act, a railroad “employee” was anyone “engaged in the customary work directly contributory to the operation of

railroads.” Transportation Act of 1920, §§ 304, 307, 41

Stat. 456; see New Prime, 139 S. Ct. at 543, n.11 (citing

Railway Employees’ Dept., A.F. of L. v. Indiana Harbor

Belt R. Co., Decision No. 982, 3 R.L.B. 332, 337 (1922)).

At the time Congress enacted the Transportation Act,

railroad employees included everyone from the conductor and engineer, to the people in the baggage and parcel room, as well as those who loaded or unloaded

7

Maritime cases both before and around the time the FAA

was passed held that firemen and cooks were considered seamen.

See, e.g., Wilson v. The Ohio, 30 F. Cas. 150 (E.D. Pa. 1834) (No.

17,825); Allen v. Hallet, 1 F. Cas. 472, 472-74 (No. 223) (S.D.N.Y.

1849). Further, as the Court explained regarding arbitration,

shipboard surgeons, who tended to injured sailors, were even considered “seamen.” See New Prime, at 542-43.

8

interstate freight. See Brief of Respondent at 14-16, 26

Saxon, 142 S. Ct. 638 (2021) (No. 21-309); Balt. & Ohio

Sw. R. R. Co. v. Burtch, 263 U.S. 540, 544 (1924).

As Congress intended to use the term “seamen” according to its accepted definition in the 1920s, it likely

intended “railroad employees” to incorporate a group

of workers associated with the conduct and business of

trains into the exemption. 9 U.S.C. § 1; see New Prime,

139 S. Ct. at 539; Seamen, Black’s Law Dictionary (3d

ed. 1933). The common link between railroaders and

seamen is their active engagement in the process of

moving goods into the channels of interstate commerce.8 Therefore, Congress intended the residual

clause to apply to similar classes actively engaged in

the flow of interstate commerce. The language of the

residual clause supports this interpretation pursuant

to the maxim of noscitur a sociis. See Lagos, 138 S. Ct.

at 1688-89.

At the time of the FAA’s enactment, the phrase “interstate commerce” was a general phrase modifying

the term “commerce.” See Interstate Commerce, Black’s

Law Dictionary (2d ed. 1910). The term “commerce” was

not limited to “only the purchase, sale, and exchange of

commodities, but also [included] the instrumentalities

8

As discussed infra at 18-19, this commonsense application

is the test adopted by the Seventh Circuit here and by many of

the circuit courts. See, e.g., Waithaka v. Amazon.com, Inc., 966

F.3d 10 (1st Cir. 2020); Carmona v. Domino’s Pizza, LLC, No. 2155009, 2021 U.S. App. LEXIS 38045 (9th Cir. Dec. 23, 2021);

Singh v. Uber Techs, Inc., 939 F.3d 210 (3d Cir. 2019); Palcko v.

Airborne Express, Inc., 372 F.3d 588 (3d Cir. 2004).

9

and agencies by which it is promoted and the means

and appliances by which it is carried on.” Commerce,

Black’s Law Dictionary, (2d ed. 1910).9 Thus, at the

time, “most people [ ] would have understood interstate

commerce” to refer to the necessary means and instruments of commerce, as well as to the transportation of

goods itself. New Prime, 139 S. Ct. at 539.

B. The residual clause exempts workers,

like those in Ms. Saxon’s class, who perform necessary loading and unloading

of goods for travel in interstate commerce.

Applying the definition of interstate commerce as

understood at enactment, the common trait shared by

railroaders, seamen, and other workers similarly engaged was that their labor was a necessary instrument

for the flow of goods between the states. The necessary

work performed by seamen and railroaders was the

loading and unloading of goods, as well as the transportation of goods. See Brief of Respondent at 12, 1417, Saxon, 142 S. Ct. 638 (2021) (No. 21-309). Thus,

9

Other dictionaries of the time defined “commerce” similarly, extending it to the “instrumentalities and means” of commerce as well as mere transportation. See Benjamin W. Pope,

Compiler, Legal Definitions: A Collection of Words and Phrases as

Applied and Defined by the Courts, Lexicographers and Authors

of Books on Legal Subjects (1919-1920) (“The sale and delivery of

goods or manufactured commodities by a citizen or corporation of

another state in the usual course of business by the usual instrumentalities and means.”).

10

Congress’s reference to these professions targeted both

aspects of their labor—loading and transporting.

As this Court recognizes, “Congress’s demonstrated concern [in passing Section 1 was] with transportation workers and their necessary role in the free

flow of goods.” Circuit City, 532 U.S. at 121. It does not

follow that Congress would insulate the transport of

goods while leaving unaffected the actual movement of

the goods onto the instrumentalities of interstate commerce. If Congress intended to exempt only the act of

transportation itself, it would have done so. See New

Prime, 139 S. Ct. at 541.10 Instead, Congress spoke of

“commerce” obliquely, necessarily incorporating the

general definition at the time, including the “instrumentalities” by which interstate commerce functioned.

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

Therefore, the class included in the residual clause

must contain at least workers who perform the necessary loading and unloading of goods because they are

actively engaged in the flow of interstate commerce.

The exemption covers modern work that is a necessary instrument or means to the flow of goods in interstate commerce. Part of the work that Ms. Saxon

10

In Section 1, Congress declined to use either “ ‘employees’

or ‘servants,’ the natural choice if the term ‘contracts of employment’ addressed them alone.” New Prime, 139 S. Ct. at 541. Similarly, if Congress intended to “address[ ] [transportation] alone,”

it could have done so, but instead it addressed commerce at large.

New Prime, 139 S. Ct. at 541. While Congress’s choice of specific

language “may not mean everything . . . it does supply further evidence still that Congress used the term . . . in a broad sense.” New

Prime, 139 S. Ct. at 541 (emphasis added).

11

and her class perform–loading and unloading goods

onto interstate air commerce–is similar to that of the

work performed by seamen and railroaders. See Brief

of Respondent at 13-18, Saxon, 142 S. Ct. 638 (2021)

(No. 21-309). Just as the work of seamen and railroaders was a necessary means to engage in interstate commerce in the 1920s, so too, the work of air cargo loaders

is a necessary means to engage in modern interstate

commerce. Any serious interruption in the service of

seamen or railroaders would slow down and obstruct

the free and steady flow of commerce. Serious interruptions in the performance of loading and unloading

goods for interstate air commerce pose the same disruption Congress sought to redress with Section 1.11

Without the labor of Ms. Saxon and her class, modern

interstate air commerce would be impossible. Ms.

Saxon’s class is a necessary part of the flow of interstate commerce and is exempted under the residual

clause of Section 1 of the Federal Arbitration Act.

11

See infra at 15-16 (discussing the reasonable purpose of

the FAA).

12

II.

Finding that Ms. Saxon and the Narrow

Class She Represents are Exempt is Consistent with the Express Language of the

FAA and Furthers the Legislative Purpose

of the Act.

A. Recognizing that airline cargo loaders

are exempt under Section 1 of the FAA

upholds the legislative intent to prevent labor disruptions in the flow of interstate commerce.

This Court has acknowledged that the FAA reflects Congress’s efforts to mitigate judicial hostility to

arbitration agreements. See Circuit City, 532 U.S. at

111, 118. However, the FAA’s policy preference is expressly limited. See New Prime, 139 S. Ct. at 543.12

This Court recognizes the reasonable assumption that

the Section’s exemption was due to concerns regarding

labor disputes involving interstate commerce. See Circuit City, 532 U.S. at 121 (inferring “Congress excluded

[the class in Section 1] . . . from the FAA for the simple

reason that it did not wish to unsettle established or

12

“While a court’s authority under the Arbitration Act to

compel arbitration may be considerable, it isn’t unconditional. . . .

[T]his authority doesn’t extend to all private contracts, no matter

how emphatically they may express a preference for arbitration.”

New Prime, 139 S. Ct. at 537. Moreover, New Prime expressly

acknowledges the legislature’s decision to limit the FAA. See New

Prime, 139 S. Ct. at 543 (“If courts felt free to pave over bumpy

statutory texts in the name of more expeditiously advancing a policy goal, we would risk failing to ‘take account of’ legislative compromises essential to a law’s passage and, in that way, thwart

rather than honor ‘the effectuation of congressional intent.’ ”) (internal alterations omitted).

13

developing statutory dispute resolution schemes covering specific workers”). Adhering to the plain meaning

of the statutory language by exempting workers directly engaged in interstate commerce, like Ms. Saxon,

furthers the legislative purpose of the FAA.

Economic data reflect the importance of airlines as

a channel of interstate commerce. Each part of the

work involved in interstate commerce, from loading

and unloading cargo, to the physical transportation of

goods, are equally critical to effectuating the objective

of reaching destinations across state and international

boundaries. See Bureau of Transp. Stat., Transportation

Statistics Annual Report 2020 5-1, 5-3 (2020), https://

rosap.ntl.bts.gov/view/dot/53936. Airline cargo loaders

serve critical roles in interstate commerce mirroring

the work performed by seamen and railroad workers.

Indeed, because of the critical role played by airlines,

as early as 1935, President Roosevelt recommended

that “ ‘[a]ir transportation’ . . . ‘should be brought into

a proper relation to other forms of transportation by

subjecting it to regulation by the same agency,’ ” reflecting the desires of Congress and the Executive to

regulate interstate air commerce similarly to other

channels of interstate commerce. See, e.g., Fed. Aviation Admin., FAA Historical Chronology: Civil Aviation

and the Federal Government, 1926–1996 19 (1998),

https://rosap.ntl.bts.gov/view/dot/37596.

Since 1925, not only have the transportation industries drastically changed, but today, the duties associated with the workers enumerated in Section 1 of

the FAA have similarly diversified for more efficient

14

operations at a much larger scale. Here, because airline cargo loaders perform nearly identical work to

that of seamen and railroad workers in 1925, they are

constituent parts of effectuating interstate commerce.

See Brief of Respondent at 16-18, Saxon, 142 S. Ct. 638

(2021) (No. 21-309).

The importance of interstate air commerce is illustrated through the Department of Transportation’s

annual report, where it was found that airports maintained thirty-two percent of the most used transportation methods in the U.S. in 2019. Bureau of Transp.

Stat., Transportation Statistics Annual Report 2021 23 (2021), https://www.bts.gov/tsar. Those same airports

accounted for nearly one trillion dollars entering the

U.S. in shipments. Id.13 More than one billion passengers traveled by commercial airlines in 2019, mostly

with luggage, an increase of 30 percent over the decade. Id. at 1-2–1-3. Interstate air commerce is an increasingly important channel among the states and

abroad and is just as critical to ensuring the flow of

goods as the rail and shipping industries were in 1925.

As seamen and railroaders are both exempt under Section 1, so too is Ms. Saxon’s class.

13

Even as the number of people traveling by air decreased

due to the pandemic, 2020 was a record year for airline cargo:

“[f ]rom May 2020 through the end of the year, U.S. airlines carried 1.34 [million] more tons of cargo than in the same period in

2019 for a jump of 11%.” Bureau of Transp. Stat., Commercial

Aviation in 2020, DATA SPOTLIGHTS (Mar. 4, 2021), https://www.

bts.gov/data-spotlight/commercial-aviation-2020-downturn-airlinepassengers-employment-profits-and-flights.

15

Failing to recognize the exemption of Ms. Saxon’s

class undermines the purpose of the FAA. The contemporary regulatory schemes available before and during

the adoption of the FAA also provide a framework for

interpreting its provisions. See, e.g., Transportation Act

of 1920, §§ 300, 316, 41 Stat. 456; Railway Labor Act,

45 U.S.C. §§ 151-165, 181-188.14 Because Congress created an applicable alternative structure for workers

under these schemes, refusing to apply the FAA’s exemption to Ms. Saxon’s class will frustrate the legislative purpose of avoiding disruptions in commerce. See

Circuit City, 532 U.S. at 121 (recognizing that Congress

“did not wish to unsettle established or developing

statutory dispute resolution schemes covering specific

workers”).15

Today, concerns relating to the free flow of goods

are no less essential than they were in 1925. Physically

loading the shipped goods onto airplanes is just as important as flying the goods across state borders. Disruptions in loading and unloading cargo from planes

based on case-by-case arbitrations could lead to interruptions and delays in the shipment of goods. Instead,

14

Congress incorporated the airline industry into the RLA in

1936, carrying airline workers engaged in commerce into Section

1. See 45 U.S.C. § 181. Congress reasonably sought to regulate

airline carriers’ labor relations for precisely the same reason it

sought to regulate the railroad industry: both were critical for interstate commerce. See 45 U.S.C. § 151a.

15

See Circuit City, 532 U.S. at 121 (noting “[i]t would be rational for Congress to ensure that workers in general would be

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

more specific legislation for those engaged in transportation”).

16

the overarching purpose of the Railway Labor Act and

the FAA may be effectuated by exempting Ms. Saxon’s

class to allow the resolution of a multitude of disputes

in one case. See 45 U.S.C. § 151a (noting the primary

purpose of the RLA was “[t]o avoid any interruption in

commerce or the operation of any carrier engaged

therein . . . [by] provid[ing] for the prompt and orderly

settlement of all disputes”). Furthermore, the tension

between both the FAA and the Railway Labor Act’s exclusive jurisdiction would be averted by affirming the

Seventh Circuit’s conclusion that Ms. Saxon and her

class are exempt from the FAA.16 Reading the FAA’s

exemption to include airline cargo loaders such as Ms.

Saxon would resolve disputes concerning rates of pay

expeditiously while limiting any disruptions to the

flow of interstate commerce, thereby upholding Congress’s purpose in enacting Section 1.

B. Ms. Saxon’s class of airline cargo loaders is narrow and the only class before

the Court.

Ms. Saxon falls within a narrow class of workers

defined by their labor in the movement of goods for

travel in interstate commerce. This class is necessarily

16

See 45 U.S.C. § 153(h) (conferring jurisdiction over disputes involving railroad employees and the railroads themselves

to the National Railway Adjustment Board); see also 45 U.S.C.

§ 185 (recognizing the same “powers and duties prescribed and

established by . . . section 153 . . . are conferred upon and shall be

exercised and performed in like manner and to the same extent

by the said National Air Transport Adjustment Board”).

17

narrow because it extends only to those workers who

physically move goods into and out of the flow of interstate commerce. Ms. Saxon’s case concerns the narrow

issue of the application of the residual clause to this

single class of workers. See Saxon, 142 S. Ct. 638 (2021)

(No. 21-309). Her case does not concern the nebulous

application of Section 1 to all individuals who may

someday interact with the stream of interstate commerce. Those classes of workers are not before the

Court. This Court should not be misdirected by Southwest and its supporting amici’s extremist argument

that to honor the exemption here leads to a “logistical

nightmare . . . appl[ying] to more than 14,000 . . . employees,” each requiring an individual and circuit-specific resolution “with widely varied results.” Pet. for

Writ of Cert. at 28, Saxon, 142 S. Ct. 638 (2021) (No.

21-309).17 Members of Ms. Saxon’s class are not gate

agents, nor are they analogous to Uber, Lyft, or Amazon delivery drivers.18

The narrow question before this Court is exclusively whether airline cargo loaders of Ms. Saxon’s

class are “transportation workers” within the meaning

of the residual clause. See Saxon, 142 S. Ct. 638 (2021)

(No. 21-309). The answer to that question is yes. Ms.

17

Judicial restraint counsels against resolving questions of

law “except when necessary to rule on particular claims.” Citizens

United v. Fed. Election Comm’n, 558 U.S. 310, 373 (2010).

18

See Brief for Lyft, Inc. as Amicus Curiae Supporting Petitioner, Saxon, 993 F.3d 492 (No. 21-309); Brief for Uber Technologies, Inc. as Amicus Curiae Supporting Petitioner, Saxon, 993

F.3d 492 (No. 21-309); Brief for Amazon.com, Inc. as Amicus Curiae Supporting Petitioner, Saxon, 993 F.3d 492 (No. 21-309).

18

Saxon’s class falls within the explicit text of the residual clause because she is directly engaged in the work

necessary for goods to flow in interstate commerce. See

Brief of Respondent at 17-18, Saxon, 142 S. Ct. 638

(2021) (No. 21-309). Recognizing that the exemption

lawfully applies to her class fulfills the legislature’s

purpose and respects the proper role of this nation’s

courts.19 “No less than those who came before [her, Ms.

Saxon,] is entitled to the benefit of that same understanding today.” New Prime, 139 S. Ct. at 544.

III. The Seventh Circuit’s Analysis Mirrored

Other Circuits and Properly Held Ms.

Saxon’s Class Exempt from the FAA.

The narrow category of work exempt from the FAA

requires the class of workers to physically move goods

into the flow of commerce. Ms. Saxon physically loads

and unloads goods that flow along the channels of interstate commerce. The Seventh Circuit’s interpretation of the residual clause conforms with the rulings

of several other circuit courts. See, e.g., Waithaka v.

Amazon.com, Inc., 966 F.3d 10, 13 (1st Cir. 2020) (holding the residual clause applies to “workers who

transport goods or people within the flow of interstate

commerce, not simply those who physically cross state

lines in the course of their work”); Carmona v. Domino’s Pizza, LLC, No. 21-55009, 2021 U.S. App. LEXIS

38045, at *7 (9th Cir. Dec. 23, 2021) (holding the

19

“By respecting the qualifications of § 1 today, [this Court]

‘respect[s] the limits up to which Congress was prepared’ to go

when adopting the Arbitration Act.” New Prime, 139 S. Ct. at 543.

19

residual clause applies to workers who “operate in a

‘single, unbroken stream of interstate commerce’ that

renders interstate commerce a ‘central part’ of their job

description”); Singh v. Uber Techs., Inc., 939 F.3d 219,

226 (3d Cir. 2019) (holding the residual clause applies

to workers “engaged in interstate commerce, or in work

so closely related thereto as to be in practical effect

part of it”); Palcko v. Airborne Express, Inc., 372 F.3d

588, 593 (3d Cir. 2004) (holding the residual clause applied to the plaintiff because her “direct supervision of

package shipments . . . [was] ‘so closely related [to interstate and foreign commerce] as to be in practical effect part of it’ ”); Rittmann v. Amazon.com, Inc., 971

F.3d 904, 915 (9th Cir. 2020) (holding that the plaintiff ’s class of workers are transportation workers included in the residual clause because the goods

“remain in the stream of interstate commerce until

they are delivered”).20 Therefore, in keeping with the

circuit courts’ thoughtful, accurate approach, the residual clause should also apply to transportation workers

like Ms. Saxon.

The Seventh Circuit applied the same textual

analysis as these circuits in holding that Ms. Saxon is

exempt from the FAA because her class of workers are

actively engaged in moving goods. Saxon, 993 F.3d at

503. In its analysis, the Seventh Circuit relied on prior

20

Southwest heavily relies upon Eastus v. ISS Facility Services and Hill v. Rent-A-Center; however, these opinions relied

solely on prior circuit precedent. See Eastus v. ISS Facility Servs.,

Inc., 960 F.3d 207 (5th Cir. 2020); Hill v. Rent-A-Ctr., 398 F.3d

1286 (11th Cir. 2005).

20

circuit precedent to support its conclusion. See Wallace

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

2020). Southwest argues that the Seventh Circuit misapplied Wallace and that Wallace supports its cramped

reading of the FAA exemption. Brief for Petitioner, at

9-10, 20-21, Saxon, 142 S. Ct. 638 (2021) (No. 21-309).

While the court in Wallace concluded that a Grubhub

delivery person who transported out-of-state goods

was not within the exemption, the analysis when correctly applied, shows that Ms. Saxon and the class she

represents are within the exemption. Wallace, 970 F.3d

at 803. The Seventh Circuit recognized that the Grubhub driver’s role in the flow of interstate commerce was

extremely attenuated.21 The Grubhub driver only delivered goods that had already completed the journey

in interstate commerce. In contrast, Ms. Saxon and her

class are actively engaged in the loading and unloading of goods for travel along the channels of interstate

commerce. Without the labor of her class, interstate

commerce would not exist.

The court in Wallace found that the residual

clause covers workers who can “demonstrate that the

interstate movement of goods is a central part of the

21

See Wallace, 970 F.3d at 802 (rejecting the argument,

among others, that delivering chocolate, originally produced in

Switzerland, qualified as engagement in interstate commerce).

The workers must have more than a passive role in the transportation of goods to fall within the FAA’s residual clause to validly

claim the exemption. See Circuit City, 532 U.S. at 119 (recognizing that the residual clause applies narrowly to specific classes of

workers engaged in commerce rather than “to all employment

contracts,” eventually relatable to interstate commerce).

21

job.” Wallace, 970 F.3d at 801. The court noted the importance of the workers being “active[ly] engag[ed] in

the enterprise of moving goods,” explaining how “a

class of workers must themselves be ‘engaged in the

channels of foreign or interstate commerce.’ ” Wallace,

970 F.3d at 802 (quoting McWilliams v. Logicon, Inc.,

143 F.3d 573, 576 (10th Cir. 1998) (emphasis added by

Seventh Circuit)). It is beyond dispute that Ms. Saxon

and her class are engaged in the channels of foreign

and interstate commerce. In practical terms, without

Ms. Saxon’s class, the cargo never boards the plane,

never enters interstate commerce, and never arrives at

its destination. The Seventh Circuit, employing the

same analysis as the First, Third, and Ninth Circuits,

correctly held that Ms. Saxon’s class is within the residual clause.

---------------------------------♦---------------------------------

CONCLUSION

The plain meaning of the text of the Federal Arbitration Act, as well as its history and purpose, supports

the Seventh Circuit’s opinion in Saxon. The FAA’s residual clause exempts those “engaged in interstate

commerce” and the clause should be interpreted to include workers like Ms. Saxon. She is a member of a

class of airline cargo loaders, who load and unload

goods for transport in the flow of interstate commerce.

Like seamen and railroad employees at the enactment

of the FAA, the issue regarding the exemption of airline cargo loaders is narrow. Loading and unloading is

necessary for goods to flow in interstate commerce. If

22

the residual clause of Section 1 reaches any worker, it

must reach Ms. Saxon’s class. This Court should affirm

the Seventh Circuit’s opinion in Saxon and find that

airline cargo loaders, like Ms. Saxon, qualify as “transportation workers” under Section 1 of the FAA.

Respectfully submitted,

MICHAEL L. FOREMAN

Counsel of Record

PENN STATE LAW

CIVIL RIGHTS APPELLATE CLINIC

329 Innovation Blvd., Suite 118

University Park, Pennsylvania 16802

(814) 865-3832

mlf25@psu.edu