Petition for Writ of Certiorari — Randstad Inhouse Services, LLC, et al., Petitioners v. Adan Ortiz, et al.

APPENDIX

i

TABLE OF CONTENTS

Page

APPENDIX A: Published Opinion of the

United States Court of Appeals for the Ninth

Circuit (Mar. 12, 2024) ............................................ 1a

APPENDIX B: Unpublished Opinion of the

United States Court of Appeals for the Ninth

Circuit (Mar. 12, 2024) .......................................... 26a

APPENDIX C: Decision of the United States

District Court for the Central District of

California (Jan. 18, 2023) ...................................... 44a

APPENDIX D: Arbitration Agreement

(Oct. 25, 2021) ........................................................ 57a

1a

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAN

ORTIZ,

an

individual and on behalf of

all others similarly situated,

Plaintiff-Appellee,

v.

RANDSTAD

INHOUSE

SERVICES,

LLC,

a

Delaware limited liability

company;

RANDSTAD

NORTH AMERICA, INC., a

Delaware corporation,

Defendants-Appellants,

and

XPO LOGISTICS, INC., a

Delaware corporation; XPO

LOGISTICS,

LLC,

a

Delaware corporation; XPO

LOGISTICS

SUPPLY

CHAIN, INC.; DOES, 1

through 50, inclusive,

Defendants.

No. 23-55147

D.C. No.

5:22-cv-01399TJH-SHK

OPINION

2a

ADAN

ORTIZ,

an

individual and on behalf of

all others similarly situated,

Plaintiff-Appellee,

v.

XPO LOGISTICS, INC., a

Delaware corporation; XPO

LOGISTICS,

LLC,

a

Delaware corporation; XPO

LOGISTICS

SUPPLY

CHAIN, INC.,

No. 23-55149

D.C. No.

5:22-cv-01399TJH-SHK

Defendants-Appellants,

and

RANDSTAD

INHOUSE

SERVICES,

LLC,

a

Delaware limited liability

company;

RANDSTAD

NORTH AMERICA, INC., a

Delaware

corporation;

DOES, 1 through 50,

inclusive,

Defendants.

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Jr., District Judge, Presiding

3a

Argued and Submitted December 4, 2023

Pasadena, California

Filed March 12, 2024

Before: Carlos T. Bea, Milan D. Smith, Jr., and

Lawrence

VanDyke, Circuit Judges.

Opinion by Judge VanDyke

SUMMARY *

Arbitration

In this consolidated interlocutory appeal, the panel

affirmed in part the district court’s order denying

appellants’ motion to compel arbitration, insofar as it

concluded that the transportation worker exemption

precluded the application of the Federal Arbitration

Act (“FAA”) to the parties’ arbitration agreement.

Plaintiff sued his former employers, appellants

Randstad Inhouse Services, LLC, and GXO Logistics

Supply Chain, Inc., and appellants moved to compel

arbitration pursuant to an arbitration agreement in

the employment contract. During the pertinent period

of employment, plaintiff worked at a California

warehouse facility operated by GXO, which received

Adidas watches, apparel, and shoes from mostly

international locations. The district court declined to

compel arbitration. Appellants contend that the

arbitration agreement is enforceable under the FAA.

* This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4a

The panel held that plaintiff belonged to a class of

workers engaged in foreign or interstate commerce

and was therefore exempted from the FAA. The panel

considered the two-step analysis in Saxon v.

Southwest Airlines Co., 596 U.S. 450, 455-59 (2022).

Applying Saxon’s first step, the panel considered

plaintiff’s job description and held that the district

court properly concluded that plaintiff’s job duties

included exclusively warehouse work.

Applying

Saxon’s second step, the panel upheld the district

court’s conclusion that plaintiff belonged to a class of

workers who played a direct and necessary role in the

free flow of goods across borders and actively engaged

in the transportation of such goods. Plaintiff’s job

description met all the benchmarks laid out in Saxon

for plaintiff to qualify as an exempt transportation

worker.

The panel rejected appellants’ arguments to the

contrary. An employee is not categorically excluded

from the transportation worker exemption simply

because he performs duties on a purely local basis.

Though plaintiff moved goods only a short distance

across the warehouse floor and onto storage racks, he

nevertheless moved them, and with the direct purpose

of facilitating their continued travel through an

interstate supply chain. Finally, the panel held that

an employee need not necessarily be employed by an

employer in the transportation industry to qualify for

the transportation worker exemption.

The panel addressed state law issues in a

concurrently filed memorandum disposition.

5a

COUNSEL

Kiran A. Seldon (argued), Jessica C. Koenig, and

Daniel C. Whang, Seyfarth Shaw LLP, Los Angeles,

California; Timothy L. Johnson (argued), Jesse C.

Ferrantella, and Cameron O. Flynn, Ogletree Deakins

Nash Smoak & Stewart PC, San Diego, California; for

Defendants-Appellants.

Thomas A. Segal (argued), Chaim S. Setareh, and

Farrah Grant, Setareh Law Group, Beverly Hills,

California, for Plaintiff-Appellee.

OPINION

VANDYKE, Circuit Judge:

After several stints of temporary employment with

Randstad Inhouse Services, LLC, and GXO Logistics

Supply Chain, Inc., Adan Ortiz sued his former

employers. 1 Pursuant to the arbitration agreement in

Ortiz’s employment contract, the employers moved to

compel arbitration. Though the agreement covers

Ortiz’s claims, which generally relate to the conditions

of his employment, Ortiz opposed arbitration on the

grounds that the agreement cannot be enforced under

either federal or state law. The district court agreed

with Ortiz and declined to compel arbitration.

1Ortiz

sued several entities affiliated with Randstad Inhouse

Services and several affiliated with GXO Logistics. At the time of

his employment, GXO Logistics operated as XPO Logistics, and

many of the affiliated entities retain the “XPO” label. This

opinion refers to the Randstad defendants collectively as

“Randstad” and the XPO/GXO defendants collectively as “GXO.”

Where the distinction between the two is immaterial, it refers to

the defendants collectively as “the employers.”

6a

In this consolidated interlocutory appeal, the

employers contend that the agreement is enforceable

under the Federal Arbitration Act (“FAA”) because

Ortiz does not qualify for the FAA’s transportation

worker exemption. See 9 U.S.C. § 1. In the event the

FAA does not apply, the employers argue that the

agreement contemplates using state substantive law

of arbitrability (here, California’s) as an alternative

means of enforcement. This opinion addresses only

the applicability of the FAA. 2

To determine whether the FAA applies, we must

decide whether Ortiz belonged to a “class of workers

engaged in foreign or interstate commerce,” 9 U.S.C.

§ 1, since such workers are exempted from the FAA.

Id. Because we conclude that Ortiz is an exempt

transportation worker, we affirm the district court’s

order insofar as it concluded that the FAA provides no

basis to enforce the parties’ arbitration agreement.

I.

Randstad is a staffing company. It hired Adan Ortiz

three times: first from October 2011 to June 2013,

again from August 2020 to February 2021, and finally

from October to November 2021. During the second

stint—the pertinent period of employment for present

purposes—he worked at a California warehouse

facility operated by GXO.

2We

address the state law issues—including (1) whether this

court has interlocutory jurisdiction to decide whether state law

applies on an alternative basis and (2) if so, whether the parties’

agreement provides for such alternative enforcement—in a

concurrently filed memorandum disposition.

7a

GXO operates warehouse and distribution facilities

for Adidas. The warehouse where Ortiz worked

receives Adidas watches, apparel, and shoes from

mostly international locations, including Asia, South

America, and Central America. Products remain at

the warehouse for anywhere from several days to a few

weeks, after which they are shipped to end-use

consumers and retailers in a variety of states.

GXO’s role in the international supply chain for

Adidas products is small but important. It receives

and stores Adidas products after they arrive from

international suppliers, then processes and prepares

them for further distribution across state lines. GXO

does not move Adidas products to or from its

warehouse.

Nor, as explained below, are GXO

employees with Ortiz’s job description responsible for

unloading the products once they arrive or loading

them when they are scheduled for departure. Those

tasks—like every other step in the Adidas supply

chain—are handled by other employees or entities.

Ortiz was employed by GXO as a “PIT / Equipment

Operator.”

He described his duties as follows:

(1) “unloading and picking up the packages and

transporting them to the warehouse racks to organize

them,” (2) “transport[ing] the packages to the picking

section of the warehouse,” (3) “assisting Pickers in

obtaining packages so they could be shipped out,” and

(4) “assist[ing] the Outflow Department to prepare

packages to leave the warehouse for their final

destination.”

It is not entirely clear what Ortiz meant by

“unloading ... the packages.” GXO, for its part,

asserted that PIT / Equipment Operators are not

8a

responsible for unloading products from shipping

containers after they arrive at the warehouse. “By the

time the PIT / Equipment Operator handles Adidas

products,” a GXO employee familiar with the process

explained, “they have already .. been unloaded at the

[warehouse] by someone other than the PIT /

Equipment Operator.” Finding the record ambiguous

as to whether Ortiz loaded or unloaded packages from

shipping containers or not, the district court assumed

for the sake of its analysis that Ortiz did not do so. We

do the same.

When Ortiz was hired to work for GXO, he signed

an arbitration agreement with Randstad. GXO was

expressly designated as an intended third-party

beneficiary of the agreement as a Randstad client to

whom Ortiz “provide[d] services on assignment.” The

agreement applied to all claims “relat[ing] to [Ortiz’s]

recruitment, hire, employment, client assignments

and/or termination including, but not limited to, those

concerning wages or compensation, consumer reports,

benefits, contracts, discrimination, harassment,

retaliation, leaves of absence or accommodation for a

disability.” Finally, the agreement’s choice-of-law

clause expressed a preference for enforcement under

the FAA, noting that the agreement “shall be governed

by the Federal Arbitration Act” and that it “may be

enforced … otherwise pursuant to the FAA.”

Notwithstanding the arbitration agreement, Ortiz

filed a class action in California state court in March

2022. The complaint alleges various violations of

California labor law, all of which are covered by the

broad language of the arbitration agreement.

Randstad timely removed the case to federal court and

9a

filed a motion to compel arbitration, which GXO

joined.

The district court declined to compel arbitration.

Relying on the Supreme Court’s decision in Southwest

Airlines Co. v. Saxon, 596 U.S. 450 (2022), and this

court’s opinion in Rittmann v. Amazon.com, Inc., 971

F.3d 904 (9th Cir. 2020), it concluded that the FAA did

not apply because Ortiz qualified as an exempt

“transportation worker.” 3 Randstad and GXO each

filed separate interlocutory appeals, which were

briefed and argued on a consolidated basis.

II.

We have jurisdiction over the interlocutory appeal

of an order denying a motion to compel arbitration

pursuant to the FAA under 9 U.S.C. § 16(a)(1)(B).

Rittmann, 971 F.3d at 909. Our review is de novo. Id.

III.

The FAA, which was enacted in “hostility of

American courts to the enforcement of arbitration

agreements,” “compels judicial enforcement of a wide

range of written arbitration agreements.” Circuit City

Stores v. Adams, 532 U.S. 105, 111 (2001). Though the

FAA’s pro-arbitration mandate is broad, its reach is

not universal. Section 1, for example, exempts the

“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

3It then concluded that the contract was ambiguous as to whether

state law might apply in the alternative and construed that

ambiguity against Randstad, the drafter. As noted above, we

address that holding and related issues in a concurrently filed

memorandum disposition.

10a

keeping with the FAA’s policy favoring arbitration, the

Supreme Court has construed the residual clause in

§ 1 narrowly, applying it only to “contracts of

employment of transportation workers.” Circuit City,

532 U.S. at 119.

After Circuit City, questions remained about what

an employee’s job description must entail for that

employee to qualify as an exempt “transportation

worker.”

See, e.g., Rittmann, 971 F.3d at 909

(considering whether an intrastate, last-mile delivery

driver qualified as an exempt transportation worker).

Especially considering the FAA’s admonition that

employees must be “engaged in foreign or interstate

commerce” to qualify for the exemption, 9 U.S.C. § 1,

employees like Ortiz, who do not transport products

across great distances and interact with interstate

commerce on a purely local basis, present a

particularly difficult interpretive issue.

Fortunately, the Supreme Court recently confronted

such a case in Saxon v. Southwest Airlines Co. Saxon

worked for Southwest Airlines as a ramp supervisor.

Saxon, 596 U.S. at 453. Like Ortiz, she did not cross

state lines or transport goods across significant

distances, and she played only a localized, supporting

role in interstate commerce. Id. at 454, 462–63. To

determine whether Saxon nevertheless qualified as an

exempt transportation worker, the Court engaged in a

two-step analysis. Id. at 455–59. First, the Court

“defin[ed] the relevant ‘class of workers’ to which

Saxon belong[ed].” Id. at 455. Then, it “determine[d]

whether that class of workers is ‘engaged in foreign or

interstate commerce.’” Id.

11a

At the first step, the Court considered Saxon’s job

description, which included “load[ing] and unload[ing]

baggage, airmail, and commercial cargo on and off

airplanes that travel across the country.” Id. at 453;

see id. at 456. In defining Saxon’s class of workers, the

Court considered the specific nature of her work, not

her employer’s status as a transportation company

more generally.

Id. at 456.

Eschewing an

“industrywide approach,” it directed its “attention to

‘the performance of work’” itself. Id. (quoting New

Prime Inc. v. Oliveira, 139 S. Ct. 532, 541 (2019)).

With that standard in mind, the Court concluded that

Saxon “belong[ed] to a class of workers who physically

load and unload cargo on and off airplanes on a

frequent basis.” Id.

At the second step, the Court disclaimed any strict

requirement that a worker must personally transport

goods interstate to qualify as a transportation worker.

See id. at 457 (quoting Balt. & Ohio Sw. R. Co. v.

Burtch, 263 U.S. 540, 544 (1924)) (considering it “too

plain to require discussion that the loading or

unloading of an interstate shipment by the employees

of a carrier is so closely related to interstate

transportation as to be practically a part of it”). It then

laid out a series of closely related standards detailing

the required relationship between the class of workers

and interstate commerce. First, “any such worker

must at least play a direct and ‘necessary role in the

free flow of goods’ across borders.” Id. at 458 (quoting

Circuit City, 532 U.S. at 121). Second, and “[p]ut

another way,” they must be “actively ‘engaged in

transportation’ of those goods across borders via the

channels of foreign or interstate commerce.” Id.

Finally, workers who are “intimately involved with the

12a

commerce (e.g., transportation) of th[e] cargo” also

qualify. Id.

Equally instructive are the categorical standards

that Saxon declined to adopt. On one hand, the Court

rejected Saxon’s position that “virtually all employees

of major transportation providers” are exempt. Id. at

461. On the other, it rejected Southwest’s view that

the provision applies only to “workers who physically

move goods or people across foreign or international

boundaries.” Id. at 461–63.

Though the Court’s different formulations of the

test— direct and necessary, active engagement, and

intimate involvement—all vary slightly, Saxon’s

bottom line is that to qualify as a transportation

worker, an employee’s relationship to the movement of

goods must be sufficiently close enough to conclude

that his work plays a tangible and meaningful role in

their progress through the channels of interstate

commerce. Ultimately, the Court held that Saxon met

the interrelated standards it had just pronounced

because “when she is ‘doing the work of unloading’ or

loading cargo from a vehicle carrying goods in

interstate transit,” “there could be no doubt that

interstate transportation is still in progress,’ and that

[Saxon] is engaged in that transportation.’” Id. at

458–59 (quoting Erie R. Co. v. Shuart, 250 U.S. 465,

468 (1919)) (cleaned up). If the same can be said of

Ortiz, then under Saxon, he too qualifies as an exempt

transportation worker.

Saxon “recognize[d] that the answer will not always

be so plain when the class of workers carries out duties

further removed from the channels of interstate

commerce or the actual crossing of borders.” Id. at 457

13a

n.2. In recent years, this court has dealt with at least

three such cases: Rittmann, 971 F.3d 904; Capriole v.

Uber Technologies, Inc., 7 F.4th 854 (9th Cir. 2021);

and Carmona Mendoza v. Domino’s Pizza, LLC, 73

F.4th 1135 (2023), petition for cert. filed (U.S. Oct. 23,

2023) (No. 23-427).

Unsurprisingly, the parties

heavily engage with these cases in their briefs, and we

consider each in turn.

In Rittmann, the court considered whether so-called

“last mile” Amazon delivery drivers—contractors who

deliver packages from a warehouse to end-use

consumers on a predominantly intrastate basis—

qualified for the exemption. 971 F.3d at 907. The

panel concluded that they did, reasoning that workers

may be “engaged in the movement of goods in

interstate commerce, even if they do not cross state

lines,” id. at 915, because they “complete the delivery

of goods that Amazon ships across state lines,” id. at

917. 4

Rittmann was decided before Saxon, and Saxon

cites Rittmann as an example of a case in which the

“answer will not always be so plain” because the

workers in Rittmann were “further removed from ...

the actual crossing of borders.” 596 U.S. at 457 n.2.

4Next

came Capriole, a case involving Uber drivers, which

approved of Rittmann’s analysis but distinguished its facts. 7

F.4th at 861 n.7. In Capriole, the court concluded that, unlike

Amazon’s last-mile delivery drivers, Uber drivers are not

participants in “a single, unbroken stream of interstate

commerce.” Id. at 866–67 (“Uber stalwartly objects to any notion

that interstate transportation is intrinsic to its service, and

Plaintiffs have proffered no evidence undermining Uber’s

position.”).

14a

Carmona Mendoza, which followed Rittmann, was

also decided for the first time before Saxon, but the

Supreme Court vacated and remanded the first

opinion in Carmona Mendoza for reconsideration in

light of Saxon. See Carmona Mendoza, 73 F.4th at

1136 (detailing the appellate history). On remand, the

panel in Carmona Mendoza again followed Rittmann,

holding that “Saxon is not inconsistent, let alone

clearly irreconcilable, with Rittmann, which continues

to control [the] analysis.” Id. at 1138–39. Therefore,

it reaffirmed its prior conclusion that delivery drivers

who make last-mile deliveries of pizza ingredients

from Domino’s supply centers to its franchisees’ retail

stores were exempt transportation workers. Id.

As Saxon notes, the questions raised by cases like

Rittmann and Carmona Mendoza, which involved

purely intrastate shipment of goods to the terminus of

a supply chain, have not yet been settled by the

Supreme Court, and the courts of appeals have

reached different conclusions. In Lopez v. Cintas

Corp., for example, the Fifth Circuit considered

whether local Cintas delivery drivers who pick up

uniforms and deliver them to local customers fall

under § 1’s exemption. 47 F.4th 428, 430–32 (5th Cir.

2022) (citing Rittmann, 971 F.3d at 915–19). The Fifth

Circuit said no, concluding that even though uniforms

were sourced from out-of-state locations, “[o]nce the

goods arrived at the Houston warehouse and were

unloaded, anyone interacting with those goods was no

longer engaged in interstate commerce.” Id. at 433.

And in Hamrick v. Partsfleet, LLC, the Eleventh

Circuit reached the same conclusion as the Fifth,

though it remanded the case to the district court to

reconsider the issue using the correct standard. 1

15a

F.4th 1337, 1351–52 (11th Cir. 2021) (“The district

court concluded that the drivers fell within the

transportation worker exemption because the goods at

issue in this case originated in interstate commerce

and were delivered, untransformed, to their

destination. ... This was error.”) (cleaned up).

But unlike Rittmann, Carmona Mendoza, Lopez, or

Hamrick, this case does not concern last-mile delivery

drivers. It presents no thorny questions about when

the interstate transport of goods ends and the purely

intrastate transport of the same goods begins. Nor

does it involve an employee who handles goods at or

near the logistical end of an interstate or international

supply chain. Rather, as the following review of the

district court’s two-part Saxon analysis demonstrates,

this case tracks Saxon in every important respect.

Regarding Saxon’s first step, the district court

concluded that Ortiz’s job duties included exclusively

warehouse work: transporting packages to and from

storage racks, helping other employees in obtaining

packages so they could be shipped, and assisting the

Outflow Department to prepare packages for their

subsequent shipment. It rightly assumed that Ortiz

was not involved in unloading shipping containers

upon their arrival or loading them into trucks when

they left the warehouse. It then properly defined

Ortiz’s class of workers by reference to his job

description, as Saxon commands, and entirely without

reference to GXO’s line of business. The district court

did not err at the first step.

And as to Saxon’s second step, the district court

correctly concluded that Ortiz’s class of workers

“play[ed] a direct and ‘necessary role in the free flow of

16a

goods’ across borders” and “actively ‘engaged in

transportation’” of such goods. Saxon, 596 U.S. at 458

(quoting Circuit City, 532 U.S. at 121). Like Saxon,

Ortiz handled Adidas products near the very heart of

their supply chain. In each case, the relevant goods

were still moving in interstate commerce when the

employee interacted with them, and each employee

played a necessary part in facilitating their continued

movement.

For these reasons, Ortiz’s job description meets all

three benchmarks laid out in Saxon. Both Ortiz and

Saxon fulfilled an admittedly small but nevertheless

“direct and necessary” role in the interstate commerce

of goods: Saxon ensured that baggage would reach its

final destination by taking it on and off planes, while

Ortiz ensured that goods would reach their final

destination by processing and storing them while they

awaited further interstate transport.

Both were also “actively engaged” and “intimately

involved with” transportation: Saxon handled goods as

they journeyed from terminal to plane, plane to plane,

or plane to terminal, while Ortiz handled them as they

went through the process of entering, temporarily

occupying, and subsequently leaving the warehouse—

a necessary step in their ongoing interstate journey to

their final destination. Id. Both were actively

engaged in the interstate commerce of goods. If Saxon

is an exempt transportation worker, Ortiz is, too.

IV.

In response, the employers make multiple attempts

to isolate Ortiz’s job description from any discernable

connection to the interstate transportation process.

First, the employers emphasize Ortiz’s purely

17a

intrastate role as a warehouse worker, noting that he

did not move goods anywhere but within the facility

and did not load or unload them as they were

transported to and from the facility. In their view,

because Ortiz performed his duties on an entirely

intrastate basis, his role did not relate to interstate

transportation in any meaningful sense.

The employers are incorrect. If Saxon stands for

anything, it is that an employee is not categorically

excluded from the transportation worker exemption

simply because he performs his duties on a purely local

basis. In Saxon, the plaintiff’s job description was

physically confined to Chicago’s Midway International

Airport. 596 U.S. at 454. But that did not preclude

the Court from concluding that she was sufficiently

connected to interstate commerce. Id. at 463. Saxon

is clear on this issue: what matters is not the worker’s

geography, but his work’s connection with—and

relevance to—the interstate flow of goods. Id. at 458.

To further illustrate this point, consider the

following historical example. In late 1860, the shortlived but nationally famous Pony Express hit full

stride. Nevada, with its 47 waystations and 417 miles

of trail, sat right in the heart of the route. At

maximum, riders rode the trail for 100 miles per shift,

meaning that on average, at least five riders were

needed to cross Nevada alone. Even though some of

these riders would have crossed Nevada’s territorial

boundaries and others would not, all of them

performed the same task (carrying the mail) using the

same means (a horse) along the same route. There is

no meaningful distinction between the interstate and

intrastate riders, all of whom were “actively engaged

in,” “intimately involved with,” and “play[ed] a direct

18a

and necessary role” in transporting interstate the very

same letters from east to west. 5 Saxon, 596 U.S. at

458. The mere fact that some riders’ routes were

confined entirely within Nevada’s borders does not

divorce their role from the task of interstate

transportation, and concluding otherwise requires

willful blindness to the broader supply chain. So too

here. Ortiz is perfectly capable of participating in the

interstate supply chain for Adidas products even

though he fulfills his role entirely within one state’s

borders.

Second—and returning to our era of planes, trains,

and automobiles—the employers argue that Ortiz’s

role is insufficiently connected to interstate

transportation because he did not transport the goods

across any appreciable distance. But Saxon forecloses

this argument, too. As a baggage handler, Saxon

carried airport baggage over only a relatively small

distance as she unloaded it from the plane and onto

the tarmac (or vice versa). Saxon, 596 U.S. at 454.

The basic fact that Saxon moved the bags across only

a small distance does not change that she moved the

baggage as part of its interstate travel. Movement

over a short distance is movement nonetheless. And

more importantly, the distance also does not affect the

nature of the task or its inherent connection to

interstate commerce. Without airport tarmac staff to

load and unload cargo, bags would not make it on or

off planes, and the interstate commerce of baggage

would immediately grind to a halt.

5These

historical facts were sourced from the National Pony

Express Association and are available online at https://national

ponyexpress.org/historic-pony-express-trail/stations/.

19a

The same is true of employees like Ortiz who move

Adidas products around GXO’s warehouse. Though

Ortiz moved goods only a short distance across the

warehouse floor and onto and off of storage racks, he

nevertheless moved them. And not only did he move

them, he did so with the direct purpose of facilitating

their continued travel through an interstate supply

chain. Without employees like Ortiz, Adidas products

that arrived at GXO’s warehouse would not be

properly processed, organized, stored, or prepared for

the next leg of their interstate journey. Indeed, as

GXO itself readily admits, although its employees do

not actively transport Adidas products themselves, its

warehouses act as intermediary “warehouse and

distribution facilities” where products are “receive[d],”

“store[d],” and “processe[d]” for further “distribution to

businesses or end consumers” in other states. That

process—and Ortiz’s undisputed role in directly

facilitating it—is a necessary step in an unbroken

foreign and interstate supply chain for Adidas

products.

Third, the employers correctly note that not every

connection to commerce will suffice, no matter how

tenuous the connection may be. See id. at 462 (quoting

Gulf Oil Corp. v. Copp Paving Co., Inc., 419 U.S. 186,

198 (1974)) (“Being only ‘perceptibly connected to ..

instrumentalities’ of interstate commerce [i]s not

enough.”). It is true that Ortiz did not perform

stereotypical transportation work, like driving a semitruck or flying a freight plane. But this fact—true

though it may be—does not end our analysis. As

Saxon has made clear, the exemption is not limited to

only those who themselves actually transport goods

across state boundaries. And in cases where courts

20a

have found an insufficiently close relationship, the

employee’s job description was much further removed

from physically handling the goods than Ortiz was

here.

For example, the employers cite a case involving a

security guard who worked at a train station. Cole v.

Burns Int’l Sec. Servs., 105 F.3d 1465 (D.C. Cir. 1997).

And in Saxon, Southwest cited a case involving

janitorial services. United States v. Am. Bldg. Maint.

Indus., 422 U.S. 271 (1975). See 596 U.S. at 462. But

nothing about the work conducted by security guards

or janitors is intrinsically connected to interstate

commerce. As important as their jobs may be, neither

physically handles goods or contributes directly to the

flow of goods in interstate commerce. Even security

guards and janitors whose employment with a

transportation company creates a coincidental

relationship to interstate commerce have nowhere

near the connection to the actual transportation of

goods that Ortiz had. Under Saxon, our focus is on

“the performance of work,” not the remote incidental

relationships created by employment with a certain

type of company. Id. at 456 (quoting New Prime, 139

S. Ct. at 541).

Fourth, the employers contend that this court may

conclude that Ortiz is a transportation worker only if

it improperly shifts its focus away from Ortiz’s work

and on to the goods themselves. This argument

reveals the extent to which the employers

underappreciate how observations about the broader

supply chain should inform the court’s view of the

work performed by the relevant class of employees.

The Supreme Court in Saxon did not improperly shift

its focus away from Saxon’s work by accounting for the

21a

inescapable fact that her job required her to handle

goods that were currently in interstate commerce.

Rather, the Court could only understand the extent to

which Saxon contributed to the interstate commerce of

baggage after it understood that Saxon’s job, though

performed on a purely local basis, involved handling

bags as they traveled interstate. Id. at 463.

Nor, as the employers contend, does this mode of

analysis necessarily transform Saxon’s standard into

a “flow of commerce” test. Done properly, the analysis

focuses not on the flow of goods themselves but on the

employee’s relationship with the flow of goods and the

extent to which his role enables them to flow in

interstate commerce. That inevitably requires an

examination of the employee’s role in context.

Unsurprisingly, such context usually involves an

understanding of how, when, and where goods move

through the supply chain. But as demonstrated above,

the flow of goods is hardly the only or even the primary

consideration.

The crux of the court’s analysis

remains the work accomplished.

Fifth and finally, the employers suggest that the

nature of GXO’s business—warehousing, not

transportation—is further evidence that Ortiz is not a

transportation worker. While the employers concede

that Saxon rejects an “industrywide approach” when

determining the class of workers to which a plaintiff

belongs, id. at 456, they contend that rejection is

limited to the first step, leaving parties free to rely on

the employer’s industry at the second step.

In support of this argument, the employers rely on

two out-of-circuit decisions: Hamrick, 1 F.4th 1337,

and Bissonnette v. LePage Bakeries Park Street, LLC,

22a

49 F.4th 655 (2d Cir. 2022), cert. granted --- S. Ct. ----,

2023 WL 6319660 (Sept. 29, 2023). While Hamrick

was decided before Saxon and Bissonnette was

decided after it, both relied on the same categorical

rule: only workers employed in the transportation

industry qualify for the transportation worker

exemption.

Hamrick, 1 F.4th at 1349 (“The

transportation worker exemption applies if the

employee is part of a class of workers: (1) employed in

the transportation industry; and (2) that, in the main,

actually engages in foreign or interstate commerce.”);

Bissonnette, 49 F.4th at 660 (“[T]he FAA exclusion is

limited to workers involved in the transportation

industry....”).

Bissonnette, for example, involved truckers who

delivered bread and other baked goods produced by

Flower Foods, Inc., and its subsidiary bakeries. 49

F.4th at 657. Plaintiffs, who possessed distribution

rights within the state of Connecticut, “pick[ed] up the

baked goods from local Connecticut warehouses and

deliver[ed] the goods to stores and restaurants within

their assigned territories.” Id. at 658. Nevertheless,

the Second Circuit concluded that the transportation

worker exemption did not apply to the plaintiffs “even

though they drive trucks, because they are in the

bakery industry, not a transportation industry.” Id. at

657.

To the extent that the employers advance a similar

categorical approach here, we find Bissonnette hard to

square with Saxon’s reasoning. To begin, we are

unconvinced that Saxon’s rejection of an industrywide

approach applied only to the first step of the analysis.

After all, the Court explicitly “reject[ed] Saxon’s

argument that § 1 exempts virtually all employees of

23a

major transportation providers,” suggesting the

Court’s skepticism to an industrywide approach

pervaded its entire analysis, not just its consideration

of the relevant class of workers. 596 U.S. at 461.

And even assuming the employers are correct that,

technically speaking, Saxon forbade such reasoning

only at the first step, they ignore the reason why the

employer’s industry is irrelevant to properly defining

the class of workers. Again, Saxon’s guiding principle

is that courts should focus on the work employees

perform, not the industry employers occupy. That

principle applies as equally to Saxon’s second step as

it does to its first. 6

Saxon’s reasoning in this regard is consistent with

the fundamental reality that within any given

company, different classes of employees often have

markedly different roles. That is true even if an

employer is situated comfortably within one industry.

For example, under Saxon, a janitor would not qualify

as a transportation worker even if he was employed by

Southwest Airlines because his role is not direct or

necessary to, actively engaged in, or intimately

involved with transportation. See id. at 460–62. On

6As

GXO correctly notes, Saxon did not decide whether a

plaintiff’s employment outside the transportation industry was

fatal to his claim “because there the plaintiff worked for an

airline.” Bissonnette, 49 F.4th at 661. The Supreme Court has

recently granted certiorari in Bissonnette, presumably to answer

this exact question. The question presented is as follows: “To be

exempt from the Federal Arbitration Act, must a class of workers

that is actively engaged in interstate transportation also be

employed by a company in the transportation industry?” Petition

for Writ of Certiorari at i, Bissonnette v. LePage Bakeries Park

St., LLC, No. 23-51 (July 17, 2023), 2023 WL 4680058.

24a

the other hand, a truck driver employed by a bakery

or a temporary employee employed by a warehousing

company might qualify despite the overarching nature

of their employers’ business because their particular

job descriptions meet the standards laid out in Saxon.

For these reasons, we conclude that an employee need

not necessarily be employed by an employer in the

transportation industry to qualify for the

transportation worker exemption. 7

***

At bottom, the employers cannot overcome the fact

that § 1 “directs the interpreter’s attention to the

performance of work.” Id. at 456 (internal quotations

omitted). When, as Saxon commands, we consider the

nature of the work performed by Ortiz’s class of

employees, we conclude that his role is “direct and

necessary” to, “actively engaged in,” and “intimately

involved with” the interstate commerce of Adidas

products. See id. at 458 (internal quotations omitted).

None of the employers’ contrary arguments compel a

different conclusion. As such, the district court was

correct to conclude that Ortiz qualifies for the FAA’s

transportation worker exemption, 9 U.S.C. § 1, and

the parties’ arbitration agreement cannot be enforced

under the FAA.

7For

the same reasons, appellants’ motion to stay appellate

proceedings (in 23-55147, ECF No. 34, and in 23-55149, ECF No.

32) pending the Supreme Court’s decision in Bissonnette and its

disposition of the petition for certiorari in Carmona Mendoza is

DENIED.

25a

V.

For these reasons, the district court’s order denying

appellants’ motion to compel arbitration is

AFFIRMED IN PART, insofar as it concluded that

the transportation worker exemption precludes the

application of the FAA to the parties’ agreement.

26a

FILED

APPENDIX B MAR 12 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAN ORTIZ, an individual No. 23-55147

and on behalf of all others

similarly situated,

Plaintiff-Appellee, D.C. No. 5:22-cv01399-TJH-SHK

v.

RANDSTAD

INHOUSE MEMORANDUM*

SERVICES,

LLC,

a

Delaware limited liability

company;

RANDSTAD

NORTH AMERICA, INC., a

Delaware corporation,

Defendant-Appellants,

and

XPO LOGISTICS, INC., a

Delaware corporation; et al.,

Defendants.

27a

* This disposition is not appropriate for publication

and is not precedent except as provided by Ninth

Circuit Rule 36-3.

ADAN ORTIZ, an individual No. 23-55149

and on behalf of all others

similarly situated,

Plaintiff-Appellee, D.C. No. 5:22-cv01399-TJH-SHK

v.

XPO LOGISTICS, INC., a

Delaware corporation; et al.,

Defendant-Appellants,

and

RANDSTAD

INHOUSE

SERVICES,

LLC,

a

Delaware limited liability

company; et al.,

Defendants.

Appeal from the United States District Court for the

Central District of California

Terry J. Hatter, Jr., District Judge, Presiding

Argued and Submitted December 4, 2023

Pasadena, California

Before: BEA, M. SMITH, and VANDYKE, Circuit

Judges. Partial Concurrence and Partial Dissent by

Judge BEA.

When Adan Ortiz was hired by Randstad Inhouse

Services to perform temporary work for GXO Logistics

28a

Supply Chain, he agreed to arbitrate any future claims

against his employers pertaining to the terms and

conditions of his employment. 1 After his temporary

employment concluded, Ortiz filed suit against his

former employers, bringing claims covered by the

agreement. The employers filed a motion to compel

arbitration of Ortiz’s claims pursuant to the parties’

agreement, which the district court denied.

In this consolidated interlocutory appeal, the

parties dispute (1) whether their arbitration

agreement is enforceable under the Federal

Arbitration Act (“FAA”) and (2) if not, whether it is

alternatively

enforceable

under

any

state’s

substantive law of arbitrability. In a concurrently

filed opinion, we affirm the district court’s order

insofar as it concluded the FAA does not apply. This

memorandum disposition considers whether the

parties’ agreement contemplates enforcement under

state law if the FAA does not apply. Concluding that

it does, we reverse the district court’s decision to the

contrary, hold that California law applies, and remand

the parties’ remaining issues for consideration in the

first instance by the district court.

Before turning to the proper interpretation of the

arbitration agreement, we must first address Ortiz’s

contention that we lack jurisdiction over the state law

portions of this case. Advancing a narrow view of our

jurisdiction, Ortiz asserts that under 9 U.S.C.

§ 16(a)(1)(B), which provides that “[a]n appeal may be

Like the concurrently filed opinion, this memorandum

disposition refers to the Randstad entities as “Randstad,” the

GXO entities as “GXO,” and the defendant employers collectively

as “the employers.”

1

29a

taken from … an order … denying a petition under

section 4 of [the FAA] to order arbitration to proceed,”

this court has interlocutory jurisdiction to review only

the applicability of the FAA, not the state law portions

of the district court’s order.

While at least one circuit has endorsed Ortiz’s view,

see Hamrick v. Partsfleet, LLC, 1 F.4th 1337, 1352–54

(11th Cir. 2021), this court has yet to address it.

Because an alternative basis for exercising

jurisdiction exists, we need not do so here. This court

has held that “an order denying a motion to compel

arbitration is immediately appealable as tantamount

to a denial of injunctive relief under 28 U.S.C.

§ 1292(a)(1).” Jackson v. Amazon.com, Inc., 65 F.4th

1093, 1097 (9th Cir. 2023). Consistent with Jackson,

we treat the district court’s order “as tantamount to a

denial of injunctive relief” and exercise jurisdiction

under 28 U.S.C. § 1292(a)(1).

With our jurisdiction established, we now turn to

the substance of the arbitration agreement. Its choiceof-law provision reads as follows:

This Agreement shall be governed by the Federal

Arbitration Act (“FAA”). Any federal, state or

local laws preempted by the FAA shall not apply

to this Agreement or its interpretation. I agree

that this Agreement may be enforced and

administered by a court of competent jurisdiction

through the filing of a petition to: compel

arbitration; confirm, vacate or modify an

arbitration award; or otherwise pursuant to the

FAA.

The district court, reasoning that “there are two

semantically reasonable interpretations of the second

30a

sentence,” concluded that the clause was ambiguous

and construed that ambiguity against Randstad, the

drafter.

“The interpretation and meaning of contract

provisions are questions of law that we review de

novo.” Rittmann v. Amazon.com, Inc., 971 F.3d 904,

909 (9th Cir. 2020).

The parties assume that

California’s law of contract interpretation applies.

Under California law, a “contract must be so

interpreted as to give effect to the mutual intention of

the parties as it existed at the time of contracting.”

Cal. Civ. Code § 1636. “California courts interpret

contracts containing arbitration provisions by

application of the plain meaning rule—words of a

contract are given their usual and ordinary meaning.”

Johnson v. Walmart, Inc., 57 F.4th 677, 682 (9th Cir.

2023). They will not “strain to create an ambiguity

where none exists.” Int’l Bhd. of Teamsters v. NASA

Servs., Inc., 957 F.3d 1038, 1044 (9th Cir. 2020)

(quoting Waller v. Truck Ins. Exch., Inc., 900 P.2d 619,

627 (Cal. 1995)).

Applying these principles, we conclude that the

choice-of-law provision unambiguously contemplates

application of both the FAA and state law to the extent

it is not preempted by the FAA. Both the first

sentence, which provides “[the] [a]greement shall be

governed by the Federal Arbitration Act,” and the

third, which contemplates enforcement “pursuant to

the FAA,” clearly express the parties’ intent to apply

the FAA. But here, as we conclude in the concurrently

filed opinion, applying the FAA provides no basis to

enforce the arbitration agreement because Ortiz

qualifies as an exempt transportation worker.

31a

“It does not follow, however, that the arbitration

clause is unenforceable” simply because it is “outside

the scope of the FAA.” Chappel v. Lab’y Corp. of Am.,

232 F.3d 719, 725 (9th Cir. 2000). Instead, “[w]hile the

distinctive procedural apparatus and presumption of

arbitrability of the FAA would fall away” under these

circumstances, Ortiz might “still be required under the

law of contract to arbitrate in accordance with the

clause.” Id.; see also Cole v. Burns Int’l Sec. Servs., 105

F.3d 1465, 1472 (D.C. Cir. 1997) (“Although the

applicability of the FAA may be significant in the

sense that the statute prescribes certain procedural

rules that might not otherwise obtain, we have little

doubt that, even if an arbitration agreement is outside

the FAA, the agreement still may be enforced.”).

Here, as Chappel anticipates, the parties’

agreement also clearly expresses their intent to

alternatively enforce the arbitration agreement under

state law. The second sentence of the choice-of-law

clause provides that “[a]ny … state … laws preempted

by the FAA shall not apply to this Agreement.” From

this provision, it stands to reason that the parties

expected state laws not preempted by the FAA—

including state laws that guarantee the enforceability

of arbitration agreements—to apply to the agreement.

This reading of the contract is consistent with both the

FAA itself, which nowhere indicates that it provides

the sole remedy for parties who agree to arbitrate

pursuant to its terms, and with Chappell.

The questions, then, are (1) which state’s law

applies and (2) whether that state’s substantive law of

arbitrability is within the class of state laws that are

not preempted by the FAA.

32a

The threshold question is which state’s law should

apply. Though the parties’ agreement contemplates

the application of some state’s law, it does not dictate

which state. Where “no effective choice of law has been

made,” California courts fall back on traditional

choice-of-law principles espoused in the Restatement

(Second) of Conflicts to decide which law has the most

significant relationship to the parties and the

transaction. E.g., Stonewall Surplus Lines Ins. Co. v.

Johnson Controls, Inc., 14 Cal. App. 4th 637, 646 (Cal.

Ct. App. 1993). Here, the factors relevant to the mostsignificant relationship analysis favor California law.

Restatement (Second) of Conflicts § 188(2)(a)–(e)

(1971).

Having decided that the state law contemplated by

the contract is California’s, we must next determine

whether California’s substantive law of arbitrability is

within the class of state laws that are not preempted

by the FAA and therefore incorporated by the choiceof-law clause. We conclude that it is. “In most

important respects, the California statutory scheme

on enforcement of private arbitration agreements is

similar to the FAA,” and California “Code of Civil

Procedure section 1281, like section 2 of the FAA,

provides that predispute arbitration agreements are

valid, enforceable, and irrevocable, save upon such

grounds as exist for the revocation of any contract.”

Lagatree v. Luce, Forward, Hamilton & Scripps LLP,

88 Cal. Rptr. 2d 664, 676 (Cal. Ct. App. 1999) (cleaned

up; internal quotations omitted). Compare Cal. Code

Civ. Proc. § 1281, with 9 U.S.C. § 2. Because the

parties contemplated the application of state law not

preempted by the FAA, and because California’s

substantive guaranty in favor of arbitrability is not, in

33a

fact, preempted by the FAA, we conclude that the

parties unambiguously agreed to apply California law

when, as here, the FAA provides no basis to enforce

the agreement. 2

In concluding otherwise, the dissent overreads both

the language of the Agreement’s choice-of-law

provision and the relevant provisions of the FAA.

First, the dissent concludes the Agreement establishes

an exclusive preference in favor of the FAA by using

the phrase “[t]his Agreement shall be governed by the

[FAA]” (emphasis added). The dissent is of course

correct that the word “shall” imposes a mandatory

duty on the parties to apply the FAA to their

agreement to arbitrate. But the dissent errs by

conflating that mandatory obligation with an

exclusive choice of law favoring the FAA.

The dissent applies the expressio unius canon to

conclude that the parties’ use of the phrase “shall be

governed by the [FAA]” implies the exclusion of all

other potentially applicable law. But as this court has

recognized, “[t]he force of any negative implication …

depends on context.” Castillo v. Metro. Life Ins. Co.,

970 F.3d 1224, 1232 (9th Cir. 2020) (quoting NLRB v.

SW Gen., Inc., 580 U.S. 288, 302 (2017)). Therefore,

“the expressio unius canon applies only when

‘circumstances support a sensible inference that the

term left out must have been meant to be excluded.’”

Castillo, 970 F.3d at 1232 (quoting Chevron U.S.A.,

Inc. v. Echazabal, 536 U.S. 73, 81 (2002) (cleaned up)).

Here, the context makes clear that the parties could

Because the choice-of-law provision is not ambiguous as to

whether state law may apply, we do not address the district

court’s decision to construe any ambiguity against the employers.

2

34a

not possibly have intended the FAA to apply to the

exclusion of all other law because the very next

sentence of the Agreement’s choice-of-law clause

states that only “state … laws preempted by the FAA

shall not apply to this Agreement” (emphasis added).

Taken together in context, the plain meaning of these

two sentences precludes the dissent’s exclusive

reading of the use of the word “shall.”

To get around that problem, the dissent adopts an

overly restrictive view of the relevant provisions of the

FAA. In the dissent’s view, the phrase “[a]ny…

state … laws preempted by the FAA shall not apply to

this Agreement” excludes a state’s substantive

guarantees in favor of arbitrability because “the FAA

expressly provides the governing standard: Ortiz is

exempt from arbitration under 9 U.S.C. § 1.”

But that is not what § 1 of the FAA says. Section 1

is a limitation on the scope of the FAA’s reach. In

relevant part, it provides that “nothing herein

contained shall apply to … any other class of workers

engaged in foreign or interstate commerce.” 9 U.S.C.

§ 1. Among the provisions that do not apply to such

contracts is the substantive guarantee in favor of

arbitrability in § 2 of the FAA, which reads “[a] written

provision in any maritime transaction … to settle by

arbitration a controversy thereafter arising out of such

contract … shall be valid, irrevocable, and

enforceable.” Id. § 2.

As the accompanying opinion concludes, we

unanimously agree that Ortiz is categorically excluded

from § 2’s guarantee favoring arbitrability on account

of § 1. But as this court decided in Chappel, “[i]t does

not follow” that Ortiz is necessarily exempt from

35a

arbitration altogether. Chappel, 232 F.3d at 725. An

exemption from a federal substantive guarantee of

arbitrability is not the same thing as a definitive

statement that such contracts are categorically

unenforceable in all circumstances.

Thus, after

applying the FAA as the parties intended, the

arbitrability of the dispute is left indeterminate. The

dissent has therefore provided no reason why state

substantive law favoring arbitration of the Agreement

would be among the class of state laws that is

inconsistent with—and therefore preempted by—the

FAA. And by the clear import of the choice-of-law

provision’s second sentence, such laws apply to the

Agreement.

The dissent’s related charge that enforcing the CAA

“means that a directly applicable FAA provision—

§ 1—does not govern the agreement” is wrong for the

same reasons. No one disputes that § 1 continues to

govern the Agreement. That is, of course, why Ortiz

cannot be compelled to arbitrate pursuant to the FAA’s

terms. But here, where the FAA neither compels nor

forecloses arbitration, the second sentence of the

choice-of-law clause clearly expresses the parties’

intent for non-preempted state law to continue to

apply to the Agreement. The CAA is one such source

of non-preempted law.

Having decided that California law applies and is

not preempted by the FAA, all that remains is to

determine whether the parties’ arbitration agreement

is enforceable under California law. Because the

district court concluded that the parties did not agree

to apply state law, it did not consider Ortiz’s

substantive challenges to enforceability, and the

parties spent comparatively little time on such issues

36a

in their briefing and argument before this court.

“Where an argument has been briefed only cursorily

before this court and was not ruled on by the district

court,” the prudent course is to remand for the district

court to first consider the issue. Shirk v. United States

ex rel. Dep’t of Interior, 773 F.3d 999, 1007 (9th Cir.

2014) (cleaned up). We therefore remand all of Ortiz’s

remaining issues to be addressed by the district court

in the first instance.

For these reasons, the district court’s order denying

appellants’ motion to compel arbitration is

REVERSED IN PART, insofar as it concluded that

state law does not apply in the alternative, and all

remaining issues are REMANDED to the district

court.

The parties shall bear their own costs

associated with this appeal.

37a

Adan Ortiz v. Randstad Inhouse Services, LLC, and

XPO Logistics, Inc., Nos. 23-55147, 23-55149

FILED

MAR 12 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BEA, Circuit Judge, concurring in part and dissenting

in part:

I join the concurrently filed opinion, which holds

that Ortiz is an exempt transportation worker under

§ 1 of the Federal Arbitration Act (“FAA”), in full. See

9 U.S.C. § 1; Sw. Airlines Co. v. Saxon, 596 U.S. 450

(2022). I also agree that we have jurisdiction over the

state law portions of this appeal under 28 U.S.C.

§ 1292(a)(1). See Jackson v. Amazon.com, Inc., 65

F.4th 1093, 1097 (9th Cir. 2023).

But in my view, the arbitration agreement

unambiguously limits its enforcement to and by the

FAA and, therefore, precludes enforcement under the

California Arbitration Act (“CAA”). Because Ortiz is

exempt from the FAA, there is no law under which the

arbitration agreement can be enforced. See Rittmann

v. Amazon.com, Inc., 971 F.3d 904, 920 (9th Cir. 2020)

(explaining that state law cannot be used to enforce an

arbitration agreement where the “express contractual

language . . . precludes its application”). I would thus

affirm the district court’s order which denied the

defendants’ motion to compel arbitration.

I

respectfully dissent.

1. “California courts interpret contracts containing

arbitration provisions by application of the plain

meaning rule—words of a contract are given their

usual and ordinary meaning.” Johnson v. Walmart,

Inc., 57 F.4th 677, 682 (9th Cir. 2023). “An essential

element of any contract is the consent of the parties or

38a

mutual assent,” and the scope of the parties’ assent “is

to be ascertained solely from the contract that is

reduced to writing, if possible.” Martinez v. BaronHR,

Inc., 51 Cal. App. 5th 962, 967 (Cal. Ct. App. 2020).

Here, the first sentence of the written arbitration

agreement provides:

“This Agreement shall be

governed by the Federal Arbitration Act (“FAA”).” 1

The only acceptable meaning of the word shall “under

strict standards of drafting” is: “has a duty to,” or “is

required to.” Shall, Black’s Law Dictionary (11th ed.

2019); see Hewitt v. Helms, 459 U.S. 460, 471–72

(1983) (explaining that the word shall is “of an

unmistakable mandatory character”). Indeed, the

most fundamental semantic rule of interpretation is

that “[w]ords are to be understood in their ordinary

everyday meanings—unless the context indicates that

they bear a technical sense.” Antonin Scalia &

Bryan A. Garner, Reading Law: Interpretation of

Legal Texts, 69. And under the expressio unius canon,

the reference to the FAA as the governing law “implies

the exclusion of other[]” laws, including the CAA. Id.

at 107.

In my view, then, the ordinary meaning of the words

“shall be governed by the [FAA]” unambiguously

mandates application of the FAA, and no other law, to

determine the enforceability of the arbitration

agreement. See Nedlloyd Lines B.V. v. Superior Ct.,

834 P.2d 1148, 1153–55 (Cal. 1992) (“When a rational

businessperson enters into an agreement establishing

a transaction or relationship and provides that

The third sentence of the arbitration clause, moreover,

reiterates that the agreement “may be enforced and

administered . . . pursuant to the FAA.”

1

39a

disputes arising from the agreement shall be governed

by the law of an identified jurisdiction, the logical

conclusion is that he or she intended that law to apply

to all disputes arising out of the transaction or

relationship.”). Put in other terms, when Ortiz signed

the arbitration agreement, he did not assent to

enforcement of the arbitration under any law other

than the FAA. See Martinez, 51 Cal. App. 5th at 967.

Hence, the law under which the agreement “shall be

governed” is the FAA, including its § 1 exemption.

And applying the FAA here, the defendants cannot

compel arbitration, because Ortiz is exempt under § 1.

There is nothing in the contract that can be construed

to say that the CAA can be used, in the alternative, to

compel arbitration whenever the FAA does not provide

for arbitration.

In concluding to the contrary, the majority relies on

Chappel v. Laboratory Corporation of America, in

which we held that an arbitration agreement can be

enforced under the law of the contract, even if a

plaintiff is exempt under the FAA. 232 F.3d 719, 725

(9th Cir. 2000). I do not take issue with that principle

in a case, unlike this one, in which the contract does

not specify that the FAA “shall” govern the dispute.

But the arbitration clause signed by the parties in

Chappel stated merely that the plaintiff could “appeal

the matter to an impartial arbitrator.” Id. at 722. It

did not specify which law should govern the

enforceability of the arbitration clause. Id. In

contrast, the arbitration clause here singles out the

FAA as the only law available to enforce arbitration.

Thus, unlike in Chappel, where the “law of the

contract” involved a general agreement to arbitrate,

the “law of the contract” here is to arbitrate under the

40a

terms of the FAA. See id. at 725. And as we all agree,

Ortiz is exempt from arbitration under the FAA. See

9 U.S.C. § 1. The majority’s holding that Ortiz is,

nonetheless, not exempt from arbitration under a

conflicting state law renders the § 1 exemption

inoperative whenever a state enacts its own

arbitration law. It should go without saying that a

state cannot nullify Congress’s commands in this way.

2. The majority next relies on the second sentence

of the arbitration agreement, which provides: “Any . . .

state . . . laws preempted by the FAA shall not apply

to this Agreement or its interpretation.” The majority

reasons that this sentence demonstrates that the

parties expected some state laws—namely, those state

laws that are not preempted by the FAA, such as the

CAA—would apply.

It thus concludes that the

contract allows state law to supersede the FAA with

respect to issues, such as enforceability, over which

the FAA directly governs. I cannot agree.

For one, the Supreme Court has held that the FAA

incorporates certain aspects of state law, because the

FAA itself provides that an arbitration clause is

enforceable “save upon such grounds as exist at law or

in equity for the revocation of any contract.” 9 U.S.C.

§ 2. Construing that language, the Court has reasoned

that, when an arbitration clause is otherwise

enforceable under the FAA, the FAA incorporates, and

thus does not preempt, “generally applicable contract

defenses” that derive solely from state law, such as

fraud, duress, or unconscionability. Kindred Nursing

Centers Ltd. v. Clark, 581 U.S. 246, 251 (2017); see

Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987) (“[S]tate

law, whether of legislative or judicial origin, is

applicable if that law arose to govern issues

41a

concerning

the

validity,

revocability,

and

enforceability of contracts generally.”). Moreover,

ordinary state-law principles govern with respect to

interpreting arbitration clauses that are enforceable

under the FAA. See, e.g., Cape Flattery, 647 F.3d at

920. Hence, the parties expected that such state laws

could be used alongside the FAA when the FAA is

applied to enforce the agreement. But the necessary

predicate for the use of state law—that the FAA can

be used to enforce the agreement—is absent here. And

nothing in the second sentence demonstrates that the

parties expected state law could supersede a directly

applicable FAA provision such as § 1.

Meanwhile, the FAA does preempt any state-law

contract principle that “discriminat[es] on its face

against arbitration.” Clark, 581 U.S. at 251. For

example, when enforcement under the FAA is

available, a state could not render all arbitration

agreements unconscionable. See, e.g., AT&T Mobility

LLC v. Concepcion, 563 U.S. 333, 343 (2011). It is

those state laws, which would have invalidated the

arbitration clause even if it were enforceable under the

FAA, that the second sentence of the arbitration

agreement clarifies may not apply. Contrary to the

majority’s reasoning, the second sentence does not

thereby say that once the FAA does not compel

enforcement, other state laws, such as the CAA—

which would never have applied if the agreement were

enforceable under the FAA—may suddenly trump the

unambiguous choice-of-FAA provision in the first

sentence. Indeed, once the FAA exempts arbitration,

there is nothing for the FAA to preempt and, therefore,

no state law that could implicate the second sentence.

Surely, a state could discriminate against arbitration

42a

if the FAA itself does not require arbitration. Hence,

once a plaintiff is exempt under the FAA, the second

sentence loses all meaning, because in that case, no

state laws would ever be “preempted by the FAA.” The

majority’s assertion that the CAA can apply because it

is not “inconsistent” with the FAA’s general preference

in favor of arbitration is therefore irrelevant when, as

here, the FAA does not express a preference in favor of

arbitration.

In turn, the second sentence is most naturally read

to reiterate the mandate of the first sentence: when

the FAA articulates a rule—relating to enforceability

or arbitration procedures—the FAA, not state law,

“shall” govern. At the same time, state laws that apply

alongside the FAA—for which the FAA does not

articulate a standard—are available to apply and

interpret the contract, as in all FAA cases, so long as

those laws do not discriminate against arbitration.

See Clark, 581 U.S. at 251. Here, however, the FAA

expressly provides the governing standard: Ortiz is

exempt from arbitration under 9 U.S.C. § 1. The

majority’s conclusion that the CAA can be used to

compel arbitration means that a directly applicable

FAA provision—§ 1—does not govern the agreement,

despite the contract’s express directive that the FAA

“shall” govern the agreement.

The majority is

incorrect to “rewrite the contract” in this manner. See

Rittman, 971 F.3d at 921.

In sum, the plain meaning of the arbitration clause

contemplates that the FAA, and only the FAA, can be

used to enforce the arbitration agreement. And

because Ortiz is exempt from the FAA, there is no law

under which the arbitration clause can be enforced.

Hence, I would affirm the district court’s order which

43a

denied the defendants’ motion to compel arbitration. I

respectfully dissent.

44a

APPENDIX C

United States District Court

Central District of California

Western Division

ADAN ORTIZ,

Plaintiff,

v.

ED CV 22-01399 TJH

(SHKx)

Order

[19]

RANDSTAD INHOUSE

SERVICES LLC, et al.,

Defendants.

The Court has considered the motion to compel

arbitration [dkt. # 19] filed by Defendants Randstad

Inhouse Services, LLC and Randstad North America,

Inc. [collectively, “Randstad”], together with the

moving, opposing and supplemental papers.

The following facts are not in dispute for this

motion.

Randstad is a staffing agency that provides workers

to, inter alia, Defendants XPO Logistics, Inc., XPO

Logistics, LLC, and/or XPO Logistics Supply Chain,

Inc. [collectively, “XPO”]. In September, 2021, XPO

was renamed GXO, but continues to be referred to,

here, as XPO.

45a

From August, 2020, to February, 2021, Plaintiff

Adan Ortiz was employed by Randstad and assigned

to work at an XPO warehouse in San Bernardino

County that received, stored, and processed Adidas

shoes, watches, and apparel. Specifically, the

warehouse received merchandise—at least some of it

from abroad—and, then, distributed it to domestic

consumers and retailers in California and other states.

Ortiz’s job duties included, inter alia, transporting

packages of merchandise after they arrived at the

warehouse and preparing packages of merchandise to

leave the warehouse.

During Randstad’s onboarding process, Ortiz signed

an Agreement to Arbitrate, which required the

arbitration of any claims concerning his “recruitment,

hire, employment, client assignments and/or

termination including, but not limited to, those

concerning wages or compensation.” The Agreement to

Arbitrate, also, included a waiver of class action

claims; a provision that any Randstad client to which

Ortiz provided services was an intended beneficiary;

and a provision that the Agreement to Arbitrate was

governed by the Federal Arbitration Act, 9 U.S.C. §§ 1,

et seq. [“the FAA”].

On October 25, 2021, Ortiz applied, again, to work

for Randstad and signed another, largely identical,

Agreement to Arbitrate. Randstad rehired Ortiz on

October 26, 2021, and, then, terminated him on

November 2, 2021. The record is not clear as to

whether Ortiz was assigned to work for XPO during

that second employment period.

On March 1, 2022, Ortiz filed this putative class

action in the Los Angeles County Superior Court

46a

against Randstad and XPO, alleging various

California wage and hour claims; a claim under

California’s Unfair Competition Law, Cal. Bus. & Prof.

Code §§ 17200, et seq.; and a claim under the Private

Attorney General Act, Cal. Lab. Code §§ 2689, et seq.

Ortiz’s Complaint proposed four subclasses: (1) All

persons employed by Randstad and XPO and/or any

staffing agency and/or any other third parties in

hourly or non-exempt positions in California, from

four years prior to the filing of this case until judgment

is entered; (2) All persons employed by Randstad and

XPO in California, from one year prior to the filing of

this case until judgment is entered; (3) Those members

of subclass 1 who were employed by Randstad and

XPO in California; and (4) All persons employed by

Randstad and XPO in California, from four years prior

to the filing of this case until judgment is entered.

On August 8, 2023, Randstad removed pursuant to

the Class Action Fairness Act, 28 U.S.C.

§ 1332(c),(d)(2) . On August 25, 2022, this case was

transferred to this Court as a related case to Emerita

Corado-Cortez v. XPO Logistics, Inc., CV 19-00670

TJH (SHK), a wage and hour class action that was

settled in 2021.

Randstad, now, moves to compel arbitration. XPO

joined the motion.

The Court’s role when deciding a motion to compel

arbitration is limited to three determinations:

(1) Whether there is a valid agreement to arbitrate;

(2) Whether the agreement to arbitrate encompasses

the dispute at issue; and (3) Whether there was a

waiver of arbitration. Chiron Corp. v. Ortho

Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir.

47a

2000); Newirth by & through Newirth v. Aegis Senior

Cmtys., LLC, 931 F.3d 935, 940 (9th Cir. 2019).

Randstad has the initial burden, here, to establish

the existence of an agreement to arbitrate between the

parties. See Sanford v. MemberWorks, Inc., 483 F.3d

956, 963 n.9 (9th Cir. 2007). If Randstad meets its

initial burden, the burden will, then, shift to Ortiz to

establish that the agreement to arbitrate is not

enforceable. See Wynn Resorts, Ltd. v. Atl.–Pac.

Capital, Inc., 497 F. App’x 740, 742 (9th Cir. 2012)

(citing AT&T Techs., Inc. v. Commc’ns Workers of Am.,

475 U.S. 643, 650 (1986)).

The FAA grants the District Court authority to

compel arbitration if there is an enforceable

arbitration agreement. In re Van Dusen, 654 F.3d 838,

842 (9th Cir. 2011). Thus, “when confronted with an

arbitration clause, the [D]istrict [C]ourt must first

consider whether the agreement at issue is of the kind

covered by the FAA.” In re Van Dusen, 654 F.3d at 844.

Here, Ortiz argued that the Agreement to Arbitrate is

not covered by the FAA because he falls under the

FAA’s transportation worker exemption, 9 U.S.C. § 1,

for “contracts of employment of seamen, railroad

employees, or any class of workers engaged in foreign

or interstate commerce.”

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

Cir. 2020), the Ninth Circuit held that if one party to

an arbitration agreement is exempt under 9 U.S.C.

§ 1, and the agreement is governed solely by the FAA,

then that agreement is invalid. In Rittmann, the

employee was entitled to § 1 exemption, and the

employer

argued

that

arbitration

should,

nevertheless, be compelled under the law of

48a

Washington state, which supplied the relevant state

law, instead of the FAA. Rittmann, 971 F.3d at 91920. The Circuit applied Washington contract

interpretation laws to construe the agreement and

concluded that the agreement was ambiguous as to

whether the parties intended Washington law to apply

if the FAA did not. Rittmann, 971 F.3d at 920.

Washington law requires ambiguities to be construed

against the contract’s drafter—in that case, the

employer. Rittmann, 971 F.3d at 920. Thus, the

Circuit concluded that neither the FAA nor state law

applied to the agreement; therefore, “[b]ecause there

is no law that governs ... there is no valid arbitration

agreement.” Rittmann, 971 F.3d at 920-21.

Applicability of Federal Arbitration Act’s

Exemption

Ortiz argued that he was exempt from the FAA

because, while working at XPO, he was a

transportation worker engaged in foreign and

interstate commerce. To determine whether Ortiz was

an exempt transportation worker, the Court must,

first, determine the class of workers to which Ortiz

belonged, and, then, determine whether that class of

workers was engaged in foreign or interstate

commerce. See Southwest Airlines Co. v. Saxon, 142 S.

Ct. 1783, 1788 (2022).

To determine the relevant class of workers, the

Court must consider the nature of Ortiz’s work, not the

nature of XPO’s business. See Southwest Airlines, 142

S. Ct. at 1788. Ortiz declared that he worked at XPO

as an Equipment Operator and that his duties

included “unloading and picking up the packages and

transporting them to the warehouse racks to organize

49a

them”; “transport[ing] the packages to the picking

section of the warehouse”; “assisting Pickers in

obtaining packages so they could be shipped out to

individuals and/or stores in various states”; and

“assist[ing] the Outflow Department to prepare

packages to leave the warehouse for their final

destination.”

While Randstad mostly did not dispute Ortiz’s

description of his work duties, it did dispute that he

unloaded packages. Randstad relied on declarations

from two XPO supervisors. The first declaration, from

Yvonne Holland, a contingent workforce director at

GXO Logistics Corporate Services, Inc., stated that,

according to XPO’s records, Ortiz was assigned to XPO

as a “PIT/Equipment Operator.” The second

declaration, from Primitivo Estrada, a senior manager

at GXO Logistics Supply Chain, Inc., stated that, at

the time Ortiz worked at XPO, “the PIT/Equipment

Operator [was] not responsible for unloading the

products from shipping containers. Instead, a different

position first interact[ed] with the products.”

Because neither Ortiz, nor XPO’s declarants,

defined the scope of “unload” in their declarations, it is

not clear whether Ortiz personally removed packages

from a shipping container, or whether the parties,

actually, disagree over Ortiz’s duties. Regardless, the

Court will proceed on the assumption that Ortiz’s

duties at XPO included only those activities that XPO

did not dispute. Thus, the Court will not consider,

here, that Ortiz might have personally loaded or

unloaded shipping containers. Accordingly, the Court

defines the relevant class of workers as those who

engaged in the undisputed activities that Ortiz

50a

performed at XPO. See Southwest Airlines, 142 S. Ct.

at 1789.

Next, the Court must consider whether that class of

workers engaged in foreign or interstate commerce.

See Southwest Airlines, 142 S. Ct. at 1789. To do so,

the Court must determine whether the class of

workers “play[ed] a direct and ‘necessary role in the

free flow of goods’ across borders” and “actively

‘engaged in transportation’ of those goods across

borders via the channels of foreign or interstate

commerce.” Southwest Airlines, 142 S. Ct. at 1790

(quoting Circuit City, 532 U.S. at 121).

In Southwest Airlines, the United States Supreme

Court held that airline ramp agents and supervisors

were engaged in interstate commerce “when they

handle[d] goods traveling in interstate and foreign

commerce, either to load them for air travel or to

unload them when they arrive.” Southwest Airlines,

142 S. Ct. at 1792. The Supreme Court did not limit

the transportation worker exemption to only those

workers who physically load and unload cargo.

Southwest Airlines, 142 S. Ct. at 1789 n.1. Rather, the

Supreme Court explained that the handling of

interstate goods by airline ramp workers was only one

particularly plain example of work within the flow of

interstate commerce. Southwest Airlines, 142 S. Ct. at

1789, 1792.

Prior to the opinion in Southwest Airlines, the Ninth

Circuit held that delivery drivers were engaged in

interstate commerce when they made local, last mile

deliveries of goods that had been shipped across state

lines. Rittmann, 971 F.3d at 907, 915. Because those

deliveries constituted a step of the interstate travel of

51a

goods—albeit the last, typically intrastate step—those

delivery drivers “form[ed] a part of the channels of

interstate commerce[.]” Rittmann, 971 F.3d at 917.

However, work that is only tangentially connected to

interstate commerce does not qualify for the FAA

exemption. Rittmann, 971 F.3d at 911. Tangential

activities include the intrastate sale of asphalt that is

later used in the construction of an interstate

highway, Southwest Airlines (citing Gulf Oil Corp. v.

Copp Paving Co., 419 U.S. 186 (1974)); the intrastate

provision of janitorial services to a company engaged

in interstate commerce, Southwest Airlines (citing

United States v. American Bldg. Maint. Indus., 422

U.S. 271 (1975); and the work of a transportation

carrier’s customer service representative, who, inter

alia, “‘never handle[s] any of the packages that the

carrier deliver[s],” Rittmann, 971 F.3d at 911 (quoting

Lenz v. Yellow Transp., Inc., 431 F.3d 348, 351-52 (8th

Cir. 2005)).

Here, it is not disputed that Ortiz “handle[d] goods

traveling in interstate and foreign commerce.”

Southwest Airlines, 142 S. Ct. at 1789-90. Ortiz used a

pallet jack to move packages that arrived at the

warehouse—that someone else might have, first,

removed from a shipping container—to warehouse

racks for temporary storage before the packages were

shipped out to consumers and retailers. Ortiz, later,

moved those packages from storage to a “drop zone” as

part of the process of preparing the packages to leave

the warehouse. Unlike, for instance, a salesperson,

janitor, or customer service representative who has

some relationship to interstate goods, but never,

actually, handles them, Ortiz, while working at XPO,

52a

was personally involved in the movement of those

goods. See Rittmann 971 F.3d at 911.

Accordingly, Ortiz was among a class of workers

engaged in interstate commerce when he worked at

XPO moving pallets of goods in the flow of interstate

commerce. Consequently, the FAA exemption applies

to him. See Circuit City, 532 U.S. at 119.

Whether the FAA’s transportation worker

exemption, also, applies to all of the putative class

members, here, is beyond the scope of this motion.

However, because the proposed putative subclasses

are defined very broadly in the Complaint, it appears

likely that some of the putative class members might

not be entitled to that exemption.

Effect of the Transportation Worker Exemption

Randstad argued that the Agreement to Arbitrate is

enforceable under California law, even if it is not

enforceable under the FAA. Therefore, the Court will

consider whether Ortiz could be compelled to arbitrate

under California law. See Rittmann, 971 F.3d at 920.

In Rittmann, the Ninth Circuit, in determining

whether Washington state law could be used to compel

arbitration pursuant to an agreement governed by the

FAA, applied two Washington contract interpretation

laws: (1) Contract provisions may be severed if doing

so does not rewrite the contract; and (2) Ambiguities

must be construed against the drafting party.

Rittmann, 971 F.3d at 920. The arbitration agreement

presented to the Circuit was part of an independent

contractor agreement. Rittmann, 971 F.3d at 908.

That agreement contained a provision requiring

arbitration of all disputes, as well as a separate section

—Section 11—that waived the right to bring class or

53a

collective actions. Rittmann, 971 F.3d at 908. A

separate, general provision in the independent

contractor agreement stated that the entire agreement

was “governed by the law of the state of Washington

without regard to its conflict of laws principles, except

for Section 11 of [the] Agreement, which is governed by

the [FAA] and applicable federal law.” Rittmann, 971

F.3d at 908 (emphasis added).

After considering the independent contractor

agreement, the Ninth Circuit, first, concluded that the

“except for” clause could not be severed from the

agreement without rewriting the agreement because

the parties clearly intended to treat Section 11

differently from the agreement’s other provisions.

Rittmann, 971 F.3d at 920. The Ninth Circuit,

ultimately, concluded that the agreement was

ambiguous as to whether, in the event that the FAA

did not apply to Section 11, the parties intended for

Washington law to apply instead, like it did to the rest

of the agreement. Rittmann. The Ninth Circuit

construed the ambiguity against the employer and

held that no law governed Section 11, thereby

invalidating it. Rittmann.

Contrary to Randstad’s argument, here, the

problem is not that the Agreement to Arbitrate lacks

a choice of law clause, but that the Agreement to

Arbitrate contains a choice of law clause—one that

requires the application of the FAA in a situation

where the FAA is not applicable given the application

of the transportation worker exemption. Thus, like in

Rittmann, the question, now, is whether the

Agreement to Arbitrate allows for the application of

California law when the FAA cannot be applied.

54a

As in Rittmann, the Court must begin with the

appropriate state’s laws of contract interpretation. In

California, “[t]he principal rule of contract

interpretation is to give effect to the parties’ intent as

expressed in the terms of the contract.” Regional Steel

Corp. v. Liberty Surplus Ins. Corp., 226 Cal. App. 4th

1377, 1390 (2014). That is, the Court must use the

contract’s written terms to discern the intent of the

parties, provided that the language is clear, explicit,

and does not create an absurd result. Revitch v.

DIRECTV, LLC, 977 F.3d 713, 717 (9th Cir. 2020)

(citing Kashmiri v. Regents of Univ. of Cal., 156 Cal.

App. 4th 809, 831 (2007). Further, the “[l]anguage in a

contract must be construed in the context of that

instrument as a whole, and in the circumstances of

that case[.]” Regional Steel, 226 Cal. App. 4th at 1390.

Additionally, in California, the Court may sever

unenforceable provisions of a contract, unless doing so

would substantively rewrite the agreement, Harper v.

Ultimo, 113 Cal. App. 4th 1402, 1412 (2003); and, if an

employment contract’s language is ambiguous, the

ambiguities must be construed against the drafting

employer, Sandquist v. Lebo Auto., Inc., 1 Cal. 5th 233,

248 (2016). Those two laws are nearly identical to the

Washington laws that the Ninth Circuit applied in

Rittmann.

Here, the choice of law provision in the Agreement

to Arbitrate is composed of three sentences:

This Agreement shall be governed by the [FAA].

Any federal, state or local laws preempted by the

FAA shall not apply to this Agreement or its

interpretation. I agree that this Agreement may

be enforced and administered by a court of

55a

competent jurisdiction through the filing of a

petition to: compel arbitration; confirm, vacate or

modify an arbitration award; or otherwise

pursuant to the FAA.

The first sentence is clear, explicit, and

unambiguous—it provides for the application of the

FAA to the entire agreement, and does not provide for

the application of any other law. Similarly, the third

sentence is clear, explicit, and unambiguous—it

affirms either party’s right to enforce the agreement,

but provides for only one vehicle to do so—the FAA.

The second sentence, if construed in context, means

that any law that is preempted by the FAA cannot be

applied to the Agreement to Arbitrate. See Regional

Steel, 226 Cal. App. 4th at 1390. Arguably, the second

sentence could, also, be construed to mean that any

law that is not preempted by the FAA can be applied,

thereby allowing for the application of state law, here.

Indeed, the FAA does preempt some California

contract laws—specifically, those that “discriminate

against” arbitration agreements—but it does not

preempt all of them. Viking River Cruises, Inc. v.

Moriana, 142 S. Ct. 1906, 1917 (2022). However, the

second sentence does not, itself, clearly state that some

other state or federal law would govern if the FAA

were inapplicable, nor does any other part of the

agreement.

At best, there are two semantically reasonable

interpretations of the second sentence—one that

merely precludes the application of any preempted

law, and one that goes further and affirmatively

allows the application of any non-preempted law.

That, by definition, is an ambiguity. California Nat’l

56a

Bank v. Woodbridge Plaza LLC, 164 Cal. App. 4th 137,

143-44 (2008). Because the Agreement to Arbitrate

was drafted by Randstad, the ambiguity must be

construed against it. See Sandquist, 1 Cal. 5th at 248.

Accordingly, the Court must construe the choice of law

provision to mean that the Agreement to Arbitrate can

be governed only by the FAA, and no other laws,

including California laws.

Thus, because Ortiz is entitled to the FAA’s

transportation worker exemption, the FAA does not

apply, here, and no other law governs the Agreement

to Arbitrate. See Rittmann, 971 F.3d at 920-21.

Therefore, no law confers authority on the Court to

compel arbitration pursuant to the Agreement to

Arbitrate. See In re Van Dusen, 654 F.3d at 842.

Consequently, Randstad failed to meet its initial

burden to establish the existence of a valid Agreement

to Arbitrate. See Sanford, 483 F.3d at 963 n.9.

Accordingly,

It is Ordered that the motion to compel arbitration

be, and hereby is, Denied.

Date: January 18,

2023

Terry J. Hatter, Jr.

Senior United States

District Judge

57a

APPENDIX D

Agreement to Arbitrate

As consideration for accepting or continuing my

employment with Randstad (hereinafter “Company”),

Company and I agree to use binding arbitration,

instead of going to court, for any “Covered Claims”

that arise between me and Company, including its

divisions, operating companies, affiliates, related

companies, subsidiaries and parent company, and/or

their current or former employe

es (“Agreement”).

I also understand that any

Company clients to which I provide services on

assignment are intended third-party beneficiaries of

this Agreement.

“Covered Claims” are any legal claims belonging to

me or to Company that relate to my recruitment, hire,

employment, client assignments and/or termination

including, but not limited to, those concerning wages

or compensation, consumer reports, benefits,

contracts, discrimination, harassment, retaliation,

leaves of absence or accommodation for a disability.

Covered Claims under this agreement do not

include:

•

any claims I cannot be required to arbitrate

as a matter of law. The parties agree,

however, that if any claim brought in court

arises out of an underlying dispute that is

subject to arbitration, the judicial action for

58a

that claim will be stayed pending completion

of the arbitration;

•

claims for workers’ compensation

unemployment compensation; and

•

claims or charges with any governmental or

administrative agency.

or

If a claim or charge is filed with a governmental or

administrative agency and a demand for arbitration is

made as to the same or similar claim or charge, either

party shall have the right to obtain a stay of the

arbitration proceedings pending the agency’s final

resolution of the administrative claim or charge if the

claimant would be precluded from bringing the same

or similar claim or charge in court prior to an agency

determination. Both parties also agree that they will

not oppose and will consent to any such stay of the

arbitration at the request of the other party. Both

parties understand that under no circumstances can

there be a duplicative award from the governmental or

administrative agency and the arbitrator.

I understand that under the National Labor Relations

Act, I am not prevented from acting in concert with

others to challenge this Agreement in any forum, and

understand that I will not be retaliated against if I act

with others to challenge this agreement.

I understand and agree that:

•

to the extent permitted by law, the

arbitrator’s award is the sole remedy for

Covered Claims;

•

arbitration is the only forum for

resolving Covered Claims, and that both

Company and I are waiving the right to

59a

a trial before a judge or jury in federal

or state court in favor of arbitration;

•

for small Covered Claims, instead of

arbitration, I may take a Covered Claim

to the small claims court closest to

where I work or last worked for

Company if the total amount that I am

seeking from Company is less than the

claim limit for that court. If I choose this

option, Company and I agree that the

decision of the small claims court judge

will be final and binding, will not be

appealed and will not be binding on any

other claim; and

•

Covered Claims will only be arbitrated

on an individual basis, and that both

Company and I waive the right to

participate in or receive money from

any class, collective or representative

proceeding. I may not bring a claim on

behalf of other individuals, and any

arbitrator hearing my claim may not

combine more than one individual’s

claim or claims into a single case, or

arbitrate any form of a class, collective,

or representative proceeding.

I

understand and agree that any ruling by

an arbitrator combining the covered

claims of two or more employees or

allowing

class,

collective

or

representative arbitration would be

contrary to the intent of this agreement

and would be subject to immediate

judicial review.

60a

I agree that all proceedings under this Agreement are

private and confidential, unless applicable law

provides to the contrary. I understand, however, that

I may make disclosures to others as reasonably

necessary to arbitrate and/or defend against any

Covered Claims.

The arbitrator shall have the

authority to make appropriate rulings to safeguard

confidentiality.

Procedure

This Agreement shall be governed by the Federal

Arbitration Act (“FAA”). Any federal, state or local

laws preempted by the FAA shall not apply to this

Agreement or its interpretation. I agree that this

Agreement may be enforced and administered by a

court of competent jurisdiction through the filing of a

petition to: compel arbitration; confirm, vacate or

modify an arbitration award; or otherwise pursuant to

the FAA. Prior to filing a demand for arbitration, I am

encouraged (but not required) to first present my

concerns in writing to a Company HR manager to see

if a resolution can be reached. To initiate arbitration,

I must prepare a written demand setting forth my

claim(s) and submit it to the American Arbitration

Association (“AAA”) Case Filing Services, 1101 Laurel

Oak Road, Suite 100, Voorhees, NJ 08043), and send a

copy of the demand to Company’s Legal Department

at 3625 Cumberland Boulevard, Suite 600, Atlanta,

GA 30339. For Company to initiate arbitration, it

must also prepare a written demand setting forth its

claim(s) and submit it to AAA Case Filing Services,

and send a copy of the demand to me at my last home

address of record. A party’s written demand for

arbitration must be received within the time period

allowed pursuant to the statute, regulation, or other

61a

law applicable to the alleged act or omission giving rise

to the covered claim, unless otherwise agreed by the

parties. For covered claims that would require me to

file a charge, complaint or claim with an

administrative agency before filing a lawsuit in court,

the demand for arbitration must be received within

the time period allowed for filing such administrative

charge, complaint, or claim under the statute,

regulation, or other law applicable to the act or

omission giving rise to the covered claim. For more

detailed information on the process, I understand I

may contact my human resources representative. I

also understand that I can obtain further information

by contacting the AAA at its toll free assistance

number

(877)

495-4185,

by

e-mail

at

casefiling@adr.org or by visiting the AAA website

(www.adr.org).

The Employment Arbitration Rules of AAA (linked

here and attached) will apply, except as follows: (a)

Company will pay the arbitrator’s fees and the

arbitration filing and administrative fees, and any

other costs uniquely attributable to arbitration

(including the filing fee); (b) Company and I will each

have the opportunity to “rank” our preference for the

appointed arbitrator from a list of proposed arbitrators

provided by AAA; (c) the parties shall have an

opportunity to conduct discovery sufficient to present

a meaningful prosecution or defense of the claims; (d)

where permitted by law, the arbitrator shall have the

authority to issue an award or partial award without

conducting a hearing on the grounds that there is no

claim on which relief can be granted or that there is no

genuine issue of material fact to resolve at a hearing,

consistent with Rules 12 and 56 of the Federal Rules

62a

of Civil Procedure; and (e) the arbitrator must issue

his or her award in writing, setting forth in summary

form the factual findings, evidence cited and reasons

for the arbitrator’s determination. The arbitrator

shall have the authority to award only such remedies

as could be awarded by a court under the applicable

substantive law, which may include injunctive or

other equitable relief.

I understand that each side must pay its own legal fees

and costs unless I win and applicable law provides for

an award of legal fees and costs.

At-Will Employment

I understand and agree that this Agreement does not

change my status as an at-will employee, and that

Company or I may terminate my employment at any

time, with or without cause or notice.

Change or Termination of Agreement

Except as prohibited by applicable law, I understand

and agree that Company may change or terminate this

agreement after giving me 90 days written or

electronic notice. The change or termination will not

apply to a pending claim.

63a

I acknowledge that I have received and read or

have had the opportunity to read this

Arbitration Agreement before signing it. By

signing below, I acknowledge that I’ve entered

into this Agreement voluntarily.

Adan Ortiz

Employee name (printed)

Digitally signed by Adan T.

Ortiz

Location:

ortizaden84@yahoo.com

10/25/2021 03:02:48 PM 07:00

Employee signature

10/25/2021

Date

Jay P. Ferguson, Jr.,

Chief Legal Officer

10/25/2021

Date