Amicus Curiae Brief — Neal Bissonnette, et al., Petitioners v. LePage Bakeries Park St., LLC, et al.

No. 23-51

IN THE

Supreme Court of the United States

___________

NEAL BISSONNETTE, ET AL.,

Petitioners,

v.

LEPAGE BAKERIES PARK ST., LLC, ET AL.,

___________

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE SUPPORTING RESPONDENTS

___________

December 18, 2023

CORY L. ANDREWS

Counsel of Record

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org

QUESTION PRESENTED

Whether business franchisees who independently

distribute baked goods within a fixed intrastate territory are within a “class of workers engaged in foreign

or interstate commerce” whose claims are exempt

from arbitration under § 1 of the Federal Arbitration

Act.

iii

TABLE OF CONTENTS

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

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

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

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

ARGUMENT ........................................................... 6

I.

ONLY CLASSES OF TRANSPORTATION-INDUSTRY WORKERS KEY TO MOVING GOODS AND

PASSENGERS ACROSS BORDERS ARE COVERED BY FAA § 1 ................................................ 6

II. ABSENT A BRIGHT-LINE RULE, SUBSTANTIAL

LITIGATION OVER THE SCOPE OF FAA

§ 1 WILL CONTINUE TO BURDEN THE

COURTS ............................................................ 17

CONCLUSION ...................................................... 20

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Allied-Bruce Terminix Cos. v. Dobson,

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

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

Coach Emp. of Am. v. Penn. Greyhound

Lines, Inc., 192 F.2d 310 (3d Cir. 1951) ............ 13

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) .............................................. 6

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ........................ 6, 7, 14, 15, 18

Epic Sys. v. Lewis,

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

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

398 F.3d 1286 (11th Cir. 2005) ........ 14, 15, 16, 17

Jarecki v. G.D. Searle & Co.,

367 U.S. 303 (1961) .............................................. 7

Lenz v. Yellow Transp., Inc.,

431 F.3d 348 (8th Cir. 2005) ........................ 13, 14

Pa. R.R. Co. v. Public Utils. Comm’n

of Ohio, 298 U.S. 170 (1936) ................................ 9

Pryner v. Tractor Supply Co.,

109 F.3d 354 (7th Cir. 1997) .............................. 19

Rittmann v. Amazon.com,

971 F.3d 904 (9th Cir. 2020) .............................. 17

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ........................................ 17

Shearson/Am. Exp. Inc. v. McMahon,

482 U.S. 220 (1987) .............................................. 1

v

TABLE OF AUTHORITIES

(Continued)

Page(s)

Sisk v. White Oak Lumber Co.,

14 F.2d 552 (W.D. Va. 1926) .............................. 10

Southern S.S. Co. v. NLRB,

316 U.S. 31 (1942) .............................................. 11

Sw. Airlines Co. v. Saxon,

596 U.S. 450 (2022) ................................ 1, 3, 7, 16

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

& Mach. Workers,

207 F.2d 450 (3d Cir. 1953) ............................... 13

United States v. La. & Pac. Ry. Co.,

234 U.S. 1 (1914) ................................................ 10

United States v. Pinto,

875 F.2d 143 (7th Cir. 1989) .............................. 18

CONSTITUTIONAL PROVISION:

U.S. Const. art. I § 8, cl. 10 ................................... 11

STATUTES:

9 U.S.C. § 1 .................................... 1–7, 9, 10, 13–20

9 U.S.C. § 2 ................................................ 2, 4, 6, 14

Act of July 20, 1790, 1 Stat. 131 ........................... 11

Crimes Act of April 30, 1790, 1 Stat. 112 ............. 11

The Motor Carrier Act of 1935, Pub. L. No.

74-255, 49 Stat. 543 ........................................... 10

Shipping Commissioners Act of 1872, 17 Stat.

262 ...................................................................... 11

Transportation Act of 1920, 41 Stat. 456 ........... 8, 9

vi

TABLE OF AUTHORITIES

(Continued)

Page(s)

LEGISLATIVE MATERIAL:

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

before the Subcommittees on the Judiciary,

68th Cong., 1st Sess. (1924) ............................... 12

MISCELLANEOUS:

26 Proc. Ann. Convention Int’l Seamen’s Union

Am. (1923) .......................................................... 12

Irving Bernstein, The Lean Years: A History of

the American Worker 1920-1933 (1960) ............ 12

Brad Davis, Southwest Airlines v. Saxon:

SCOTUS Left Much Unsaid in Ruling on

Cargo Loaders’ Exemption from Arbitration,

WLF Legal Backgrounder,

https://perma.cc/W9TB-AX5F .............................. 1

Dennis R. Nolan & Roger I. Abrams, American

Labor Arbitration: The Early Years, 35 U. Fla.

L. Rev. 337 (1983) ............................................ 8, 9

David Pietrusza, 1920: The Year of Six

Presidents (2007) .................................................. 8

Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989)................ 18

Imre Szalai, An Annotated Legislative Record for

the Federal Arbitration Act (2020)..................... 12

Ahmed A. White, Mutiny, Shipboard Strikes,

and the Supreme Court’s Subversion of New

Deal Labor Law, 25 Berkeley J. Emp. &

Lab. L. 275 (2004) .............................................. 11

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with supporters nationwide. WLF promotes free enterprise,

individual rights, limited government, and the rule of

law. It often appears as an amicus in important Federal Arbitration Act (FAA) cases. See, e.g., Sw. Airlines Co. v. Saxon, 596 U.S. 450 (2022); Epic Sys.

Corp. v. Lewis, 138 S. Ct. 1612 (2018). And WLF’s Legal Studies Division routinely produces scholarly papers on arbitration. See, e.g., Brad Davis, Southwest

Airlines v. Saxon: SCOTUS Left Much Unsaid in Ruling on Cargo Loaders’ Exemption from Arbitration,

WLF Legal Backgrounder, https://perma.cc/W9TBAX5F.

The FAA “establishes a federal policy favoring

arbitration.” Shearson/Am. Exp. Inc. v. McMahon,

482 U.S. 220, 226 (1987). Section 2 requires that most

people comply with their arbitration agreements. But

§ 1 of the FAA contains a discrete exemption for workers who “play a direct and ‘necessary role in the free

flow of goods’ across borders.” Saxon, 596 U.S. at 458.

Congress included this exemption to enable workers

in the transportation industry to arbitrate through

other congressionally created channels. Petitioners

here are not subject to an alternative channel of this

sort; they just want to avoid arbitration altogether.

They seek to gut the federal policy in favor of arbitration by expanding the § 1 exemption far beyond its

proper bounds. The Court should clarify that § 1

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

person or entity, other than Washington Legal Foundation or its

counsel, helped pay for this brief’s preparation or submission.

*

2

covers only those classes of workers who are both

within the transportation industry and engaged in

cross-border transportation.

STATEMENT OF THE CASE

Flowers Foods, Inc. and its subsidiaries produce popular baked goods and snacks. Pet. App. 3a–

4a. Although they style themselves as “commercial

truck drivers,” Petitioners are in fact franchisees who

own the right to market, sell, and distribute certain

Flowers products within fixed territories in Connecticut. Id. at 4a. Petitioners make money by buying

Flowers products from Flowers and reselling them to

others at a profit. Id. Even if Petitioners sometimes

deliver Flowers products, they do so only inside Connecticut. Id.

Petitioners sued Flowers for alleged violations

of Connecticut wage-and-hour laws and the Fair Labor Standards Act. Pet. App. 100a. Flowers moved to

dismiss and, alternatively, to compel arbitration because Petitioners agreed to arbitrate their claims. Id.

Flowers invoked § 2 of the FAA, which says that an

otherwise valid arbitration clause in a “contract evidencing a transaction involving commerce” is “enforceable.” 9 U.S.C. § 2. In response, Petitioners invoked § 1 of the FAA, known as the “transportationworker exemption.” Pet. App. 100a. It says that the

FAA does not govern “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9

U.S.C. § 1. Petitioners insist that they fall within the

§ 1 exemption.

3

Emphasizing that Petitioners are franchise

business owners rather than mere delivery drivers,

the district court rejected Petitioners’ construction of

§ 1 and granted Flowers’s motion to compel. Pet. App.

101a. As the district court explained, Petitioners are

“more akin to sales workers or managers who are generally responsible for all aspects of a bakery distribution business” than to “traditional transportation

workers like a long-haul trucker, railroad worker, or

seaman.” Id. at 114a.

The Second Circuit affirmed. With the benefit

of this Court’s opinion in Saxon, the Second Circuit

held that § 1 covers only essential workers in the

“transportation industry”—not individuals like Petitioners, who sell baked goods and distribute them intrastate. Pet. App. 11a. This construction, the court

explained, best tracks § 1’s text, whose use of “seamen” and “railroad employees” “locate the ‘transportation worker’ in the context of a transportation industry.” Id. at 8a.

The late Judge Pooler dissented. Pet. App. 24a–

37a. She insisted that Petitioners “do work in a transportation industry: trucking.” Id. at 34a. The Second

Circuit denied Petitioners’ rehearing petition over

Judge Nathan’s dissent, which Judges Robinson and

Pérez joined. Id. at 79a. This Court granted review.

SUMMARY OF ARGUMENT

Litigation is expensive. It’s expensive for businesses, which must pay lawyers to argue and employees to miss work to testify. It’s expensive for consumers and workers, who cover businesses’ costs through

higher prices and lower wages. It’s expensive for the

4

judiciary, which must pay for “judges, attendants,

light, heat, and power—and even ventilation in some

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

before the Subcommittees on the Judiciary, 68th

Cong., 1st Sess. (1924) (statement of Charles L. Bernheimer). And it’s expensive for the average citizen; for

just as corporate litigation expenses are really consumer and worker expenses, the judiciary’s expenses

are really taxpayer expenses.

It’s no mystery, then, why Congress passed the

FAA. Courts had long refused to enforce most arbitration agreements, and this meant that more disputes

remained in litigation. To save people time, money,

and trouble, Congress empowered courts to enforce

otherwise valid clauses, in contracts “involving commerce,” that require streamlined private dispute resolution—arbitration. 9 U.S.C. § 2. But the FAA contains a qualification. It does not govern “contracts of

employment of seamen, railroad employees, or any

other class of workers engaged in foreign or interstate

commerce.” 9 U.S.C. § 1.

Contrary to Petitioners’ elastic reading, § 1 is

not the product of Congress’s desire to excuse from arbitration any worker involved in the transportation of

goods. Rather, § 1 exists because transportation

strikes in the wake of World War I threatened to disrupt other national industries dependent on transportation services. Congress made sure certain classes of

transportation workers would engage in arbitration

governed by other federal laws. When Congress enacted the FAA, seamen and railroad workers were

subject to their own federal arbitration regimes. Congress exempted these classes of workers from the FAA

to ensure that the FAA did not disrupt those distinct

5

systems of alternative-dispute-resolution. (The seamen had, in fact, lobbied for this carve out.)

As for § 1’s residual clause—the carveout for

“other class[es] of workers engaged in foreign or interstate commerce”—it covers only those workers whom

Congress expected would get their own federal arbitration law or special remedial scheme. Congress reserved that option for workers precisely analogous to

seamen and railroad employees. That means workers

who (1) traverse national and international shipping

lanes and (2) might reasonably be expected to cause

major economic disruption through labor action. In

short, § 1 exempts from the FAA only workers in the

transportation industry who regularly carry goods

and passengers across interstate or foreign borders.

Section 1 simply accommodates existing or anticipated federal arbitration laws tailored to specific

classes of workers in the transportation sector. And

because § 1 fulfills this singular purpose, there is no

principled way to stretch its application. Although

some judge-made tests purport to expand the exemption beyond those who play a key role in the interstate

and international transportation of goods and passengers, these contrived standards defy statutory text

and context, produce inconsistent results, and serve

no congressional goal. Absent a bright-line rule from

this Court, substantial litigation over the scope of

FAA § 1 will continue to burden companies and the

courts.

6

ARGUMENT

I.

ONLY CLASSES OF TRANSPORTATION-INDUSTRY WORKERS KEY TO MOVING GOODS AND

PASSENGERS ACROSS BORDERS ARE COVERED

BY FAA § 1.

Section 2 of the FAA empowers a party to enforce an (otherwise valid) arbitration clause in “a contract evidencing a transaction involving commerce.” 9

U.S.C. § 2. Congress enacted the statute to thwart the

“great variety” of “devices and formulas” that judges

“hostil[e] towards arbitration” had used to “declar[e]

arbitration against public policy.” AT&T Mobility

LLC v. Concepcion, 563 U.S. 333, 342 (2011). And it

used broad terms (“evidencing” a transaction “involving” commerce) because it wanted the FAA to extend

as far as the federal legislative power under the Commerce Clause can go. Allied-Bruce Terminix Cos. v.

Dobson, 513 U.S. 265, 277 (1995). In short, Congress

wanted the FAA to govern most arbitration clauses.

Most, but not all. Section 1 of the FAA withdraws from the statute’s coverage “contracts of employment of seamen, railroad employees, or any other

class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. As shown below, that exemption

cuts much more narrowly than Petitioners contend.

First, Congress framed § 2 more broadly than

§ 1. Section 2 extends the FAA to a contract “involving” commerce, while § 1 removes it from a contract of employment signed by certain classes of

transportation workers “engaged in” foreign or interstate commerce. The “open-ended” § 2 is limited by

the “narrower” § 1. Circuit City Stores, Inc. v. Adams,

7

532 U.S. 105, 118 (2001). This manifests an intent to

withdraw only a small sliver of contracts from the

FAA’s purview. After all, if Congress had wanted the

FAA to have a narrow ambit—if it had wanted it to

apply, say, only to contracts between merchants—it

could have simply said so. It would have made no

sense for Congress to craft a narrow statute by the

circuitous method of (1) writing a sweeping clause,

and then (2) cutting that clause to the bone with another, almost equally sweeping clause.

What’s more, under the venerable statutory

canon noscitur a sociis, “a word is known by the company it keeps.” Jarecki v. G.D. Searle & Co., 367 U.S.

303, 307 (1961). Section 1 lists seamen, railroad employees, and others “engaged in” foreign or interstate

commerce. The section’s more general category (“any

other class of workers engaged in foreign or interstate

commerce”) is “controlled and defined” by the concrete

examples that precede it (“seamen” and “railroad employees”). Circuit City, 532 U.S. at 114–15. So § 1 governs seamen, railroad employees, and others like

them. Others, that is, who engage in foreign or interstate shipping and transportation like seamen and

railroad employees do. Section 1 is a discrete carveout

for narrow classes of transportation workers who

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

goods’ across borders.” Saxon, 596 U.S. at 458.

But why would Congress want to fully protect

commercial arbitration except when it comes to nationwide transportation, the very lifeblood of commerce? The answer lies in the history behind Congress’s decision to single out rails, sails, and other

common carriers. Special reasons applied to each

group—reasons that point to § 1’s exceedingly limited

8

role in Congress’s otherwise uniform arbitration

scheme.

Start with the railroads. “Before the modern

highway system, railroads were the only practical

means of long-distance transportation.” Dennis R. Nolan & Roger I. Abrams, American Labor Arbitration:

The Early Years, 35 U. Fla. L. Rev. 337, 382 (1983).

And “railroad employees were among the first to organize nationally.” Id. The railroads were thus both a

keystone of the economy and a hotbed of labor friction.

No surprise, then, that the national government spotted the need for streamlined dispute resolution for the

rail industry long before it spotted the need for it in

the wider market. “Reacting to a drastic increase in

[railroad worker] strikes, President Grover Cleveland

recommended to Congress in 1886 the creation of a

permanent board for voluntary arbitration of railroad

labor disputes.” Id. at 382.

The resulting law—and a series of others—

failed to stem the strikes. Id. at 382–85. But Congress

kept trying. As World War I brought home the importance to national security of America’s transportation industry, wartime inflation sparked a dramatic

rise in labor unrest. In 1919 alone, over 4 million

workers—one-fifth of the nation’s workforce—participated in labor strikes. David Pietrusza, 1920: The

Year of Six Presidents 143 (2007). For years—up to

and through 1925, the year the FAA was passed—

Congress collaborated with the railroads and their

workers to create a special rail-industry arbitration

regime.

In the Transportation Act of 1920, Congress

clarified that not everyone who worked on a train was

9

a railroad employee entitled to a special arbitration

process. The Act’s dispute resolution provisions applied only to “carriers and their officers, employees,

and agents.” Transportation Act of 1920, Pub. L. No.

66-152, § 301, 41 Stat. 456. The Act defined “carrier,”

in accord with the Interstate Commerce Act, as “any

common carrier or carriers engaged in the [foreign or

interstate] transportation of passengers or property

wholly by railroad, or partly by railroad and partly by

water.” Id. § 300(1); Interstate Commerce Act, Pub. L.

No. 49-104, § 1, 24 Stat. 379 (1887). In short, the

Transportation Act supplied a special dispute resolution mechanism for only those workers engaged in the

common carriage of goods or persons.

At the time Congress was considering the FAA,

“railway executives and union officials” held “a series

of conferences aimed at drafting a new law.” Nolan &

Abrams, supra, at 386. The Railway Labor Act of 1926

created a comprehensive process for resolving labor

grievances for unionized railway workers. Id. at 386–

87. The law even banned strikes “over certain grievance disputes.” Id. at 387. It would, of course, have

made no sense for Congress to disrupt the delicate negotiations underlying this law by slapping the FAA on

the railroads.

What’s more, federal courts at the time considered companies that used the railroads to ship goods

for their own benefit, rather than as common carriers

for others, to be outside the scope of the Interstate

Commerce Act. See Pa. R.R. Co. v. Pub. Utils. Comm’n

of Ohio, 298 U.S. 170, 175 (1936). For example, although many logging and mining companies maintained private railroads, they were not considered

“railroad companies” because the railways were used

10

exclusively by the company and not open for public

hire. See, e.g., Sisk v. White Oak Lumber Co., 14 F.2d

552, 553 (W.D. Va. 1926) (“railroad company” does not

“include those who own or operate private railroads

as an incident to some other business”). Workers engaged in such private carriage would not be expected

to avail themselves of their own arbitration regime.

The crucial distinction was the “right of the public to

use the road’s facilities and to demand service of it,

rather than the extent of [the company’s] business.”

United States v. La. & Pac. Ry. Co., 234 U.S. 1, 23–25

(1914).

Even after enacting the FAA, Congress continued to treat common carriers differently from private

carriers. The Motor Carrier Act of 1935, for example,

authorized the Interstate Commerce Commission to

regulate motor-vehicle carriers. Pub. L. No. 74-255,

49 Stat. 543. But it distinguished between “common

carrier by motor vehicle” and other motor vehicle carriers (such as “contract carrier by motor vehicle” and

“private carrier of property by motor vehicle”). Id.

Read in its historical context, then, FAA § 1’s exemption covers only those engaged in common carriage of

goods and passengers—not every delivery worker

loosely engaged in interstate commerce. Congress

was not concerned with private carriage of one’s own

products, because a private carriage strike wouldn’t

cripple the economy or threaten national security. This crucial backdrop informs § 1’s purpose and

the meaning of its residual clause.

The reason seamen are mentioned in § 1 is

more obvious still. From the beginning of the republic,

the federal government had taken a keen interest in

maritime working conditions. For instance, the First

11

Congress “enacted protective legislation giving seamen the right to written employment contracts * * *

[and] protection from onboard debt collection.” Ahmed

A. White, Mutiny, Shipboard Strikes, and the Supreme Court’s Subversion of New Deal Labor Law, 25

Berkeley J. Emp. & Lab. L. 275, 292 (2004) (discussing Act of July 20, 1790, 1 Stat. 131, 131–35); see also

Southern S.S. Co. v. NLRB, 316 U.S. 31, 38–39 (1942)

(“Workers at sea have been the beneficiaries of extraordinary legislative solicitude[.] * * * The statutes

of the United States contain elaborate requirements

with respect to such matters as their medicines, clothing, heat, hours and watches, wages, and return

transportation to this country if destitute abroad.”).

The First Congress also regulated the earliest

form of maritime alternative-dispute resolution—better known as mutiny—through its power “to define

and punish * * * Felonies committed on the high

Seas.” U.S. Const. art. I § 8, cl. 10. “If any seaman

shall * * * make a revolt in the ship,” declared the

Crimes Act of 1790, he “shall be deemed * * * a pirate

and a felon, and * * * shall suffer death.” 1 Stat. 112,

114. Despite this and other punitive laws, robust “labor protest” was “a common feature of shipboard life

in the nineteenth and early twentieth centuries.”

White, supra, at 299–301. After World War I, efficient

access to ships and ports became a national security

imperative. By 1925, seamen (like railroad workers)

were both highly organized and the subject of several

federal labor laws. See id. at 305. As far back as 1872,

in fact, Congress had provided seamen a distinct form

of arbitration, overseen by “shipping commissioners,”

in many ports. See Shipping Commissioners Act of

1872, § 25, 17 Stat. 262, 267.

12

When Congress was considering the FAA, the

president of the International Seamen’s Union, Andrew Furuseth, lobbied to exempt seamen from the

law’s reach. See Imre Szalai, An Annotated Legislative

Record for the Federal Arbitration Act 56 (2020) (exchange between Senator Sterling and Mr. Piatt). He

feared that, given then-existing quirks of admiralty

law, seamen were especially vulnerable to hidden arbitration clauses. 26 Proc. Ann. Convention Int’l Seamen’s Union Am. 203–04 (1923). He feared too that,

unlike other workers, seamen (and railway laborers)

were subject, if they ignored such a clause, to being

“forced” into “involuntary labor.” Id. at 203. And he

believed that the courts, which had historically

viewed seamen as “wards of the admiralty,” treated

his constituents with special favor. Irving Bernstein,

The Lean Years: A History of the American Worker

1920-1933 400–03 (1960). The seamen’s exemption

from the FAA thus has all the hallmarks of a legislative compromise extracted by an interest group—and

limited to that group’s unique circumstances.

It is true that, in a letter to Congress supporting passage of the FAA, then-Secretary of Commerce

Herbert Hoover wrote: “If objection appears to the inclusion of workers’ contracts in the law’s scheme, it

might be well amended by stating ‘but nothing herein

contained shall apply to contracts of employment of

seamen, railroad employees, or any other class of

workers engaged in interstate or foreign commerce.’”

Joint Hearings on S. 1005 and H. R. 646, supra. But

the historical context confirms that Hoover, in referring to “workers’ contracts,” was most likely just responding to the special needs of a few discrete transportation industries (and the special lobbying of the

seamen in particular).

13

Given the context discussed above—context

confirmed by an early authority on this topic, Tenney

Engineering, Inc. v. United Elec. Radio & Machine

Workers, 207 F.2d 450, 452–53 (3d Cir. 1953)—the

keys to understanding § 1 of the FAA are (1) the

unique situation of (and lobbying by) seamen and (2)

“the existence of administrative rather than judicial

machinery for settlement of labor disputes” involving

seamen and railroad workers. Amalgamated Ass’n St.

Elec. Ry. & Motor Coach Emp. of Am. v. Penn. Greyhound Lines, Inc., 192 F.2d 310, 313 (3d Cir. 1951).

Congress understood, above all, that including sea

and rail workers in the FAA “would have created

pointless friction” in “already sensitive area[s].” Id.

Once these driving forces are accounted for, the scope

of § 1 becomes clear.

Section 1 was meant to apply, at most, to workers in cross-border transportation industries subject,

or likely to become subject, to (1) their own unique

federal arbitration scheme (in the case of the RLA and

unionized railway workers) or (2) a specialized federal

scheme governing wages, hours, and working conditions (in the case of the seamen). In other words, the

FAA’s “draftsmen had in mind the two groups of

transportation workers as to which special arbitration legislation already existed and they rounded out

the exclusionary clause by excluding all other similar

classes of workers.” Tenney, 207 F.2d at 452–53.

And this is essentially how most federal courts

have come to understand § 1. A worker must be “employed in the transportation industry” to qualify as a

“transportation worker” under § 1. Hamrick v.

Partsfleet, LLC, 1 F.4th 1337 (11th Cir. 2021); see also

Lenz v. Yellow Transp., Inc., 431 F.3d 348, 349 (8th

14

Cir. 2005) (“[Plaintiff] works in the transportation industry.”); Hill v. Rent-A-Center, Inc., 398 F.3d 1286,

1290 (11th Cir. 2005) (“Because [plaintiff] was not

within a class of workers within the transportation

industry, his employment contract is not exempted

from the FAA’s mandatory arbitration provisions.”);

Erving v. Virginia Squires Basketball Club, 468 F.2d

1064, 1069 (2d Cir. 1972) (“[T]he exclusionary clause

in Section 1 applie[s] only to those actually in the

transportation industry.”). As Judge Jacobs noted below in his concurrence, besides the First Circuit,

“every appellate [court] that grants exemption to a

transportation worker under Section 1 of the FAA decides or presumes the prior question of whether that

person works in a transportation industry.” Pet. App.

85 & n.2 (Jacobs, J., concurring).

This understanding of § 1 also squares with

this Court’s leading precedent in Circuit City. 532

U.S. at 118. There the Court noted the distinction between § 2’s use of the broad “involving commerce” and

§ 1’s use of the narrower “engaged in commerce,” 532

U.S. at 118; and it stressed the importance of reading

“other class of workers” in line with “seamen” and

“railroad employees,” id. at 114–15. It also endorsed

the view that Congress’s decision “to exempt [from the

FAA] the workers over whom the commerce power [i]s

most apparent” arose from the special status of those

workers’ industries. Id. at 120. “It is reasonable to assume,” Circuit City explained, “that Congress excluded ‘seamen’ and ‘railroad employees’ from the

FAA for the simple reason that it did not wish to unsettle established or developing statutory dispute resolution schemes covering specific workers.” Id. at 121.

The residual clause about “other class of workers,” under this reading, covers only those “transportation

15

workers” who, being themselves essential to the “free

flow of goods” across borders, might, like seamen and

railroad employees, get a federal arbitration law of

their own. Id.

The import of Circuit City’s statutory analysis

is unmistakable: § 1 should apply to only those workers key to carrying goods and people across national

or international borders, as seamen and railroad employees do. Indeed, workers in the transportation industry are precisely the kinds of workers who might

generate the type of labor issues that would spur Congress to pass “specific legislation” (id. at 121), as it did

for the seamen and the railroad employees.

Hill reads Circuit City accurately. Hill was an

account manager for a furniture rental company. 398

F.3d at 1288. As part of his job, he sometimes delivered “goods to customers out of state in his employer’s

truck.” Id. He argued that § 1 exempted him from arbitration with his employer. After discussing Circuit

City, however, Hill holds that § 1 does not cover workers who “incidentally transported goods interstate as

part of their job in an industry that would otherwise

be unregulated”—an industry, that is, for which Congress would not create “specific legislation.” Id. at

1289. “There is no indication,” Hill continues,

that Congress would be any more concerned about the regulation of the interstate transportation activity incidental

to Hill’s employment as an account manager, than it would in regulating interstate ‘transportation’ activities of an interstate traveling pharmaceutical salesmen who incidentally delivered products

16

in his travels, or a pizza delivery person

who delivered pizza across a state line to

a customer in a neighboring town.

Id. at 1289–90. Exactly so. Hill’s analysis is even

more clear-cut in this case. After all, Petitioners are

not engaged in interstate transportation of any sort;

they merely deliver products intrastate, solely in Connecticut.

This Court’s decision last term in Saxon

changes nothing. First, Saxon was an airline employee, so the Court had no need to consider

§ 1’s application outside the transportation industry.

596 U.S. at 457; Pet App. 86a–87a (“The self-evident

premise of Saxon was that an airline is a transportation industry.”) And Saxon clarifies that § 1 applies

only to classes of workers who “actually engage[] in

interstate commerce in their day-to-day work.” 596

U.S. at 456.

When Congress enacted the FAA, railroad employees and seamen were unique, highly regulated

classes of transportation workers engaged in the business of providing common carriage of goods and passengers. The crucial factor driving the creation of § 1

(other than straight special-interest lobbying for seamen) was whether a distinct federal scheme existed,

or was likely to arise, for a given class of state- or foreign-boundary-crossing workers.

“The statute creates an exemption for those

who work moving goods and passengers in one of the

mighty engines of interstate and international

transport, not for everyone who works on wheels.”

Pet. App. 87a–88a (Jacobs, J., concurring). Properly

17

read, then, § 1 governs only seamen, railroad employees, and other classes of workers in the transportation

industry who regularly carry goods and passengers

for hire across interstate or foreign borders. Petitioners cannot meet that test.

II. ABSENT A BRIGHT-LINE RULE, SUBSTANTIAL

LITIGATION OVER THE SCOPE OF FAA

§ 1 WILL CONTINUE TO BURDEN THE COURTS.

What the statutory text and historical context establish, logic confirms. There is no principled way to

stretch § 1 beyond seamen, railroad employees, and

other transportation-industry workers. To prevent

Congress’s broad policy favoring arbitration from continuing to unravel one lawsuit at a time, this Court

should establish a bright-line rule.

“Judicial action must be governed by standard,

by rule, and [it] must be principled, rational, and

based upon reasoned distinctions found in the Constitution or laws.” Rucho v. Common Cause, 139 S. Ct.

2484, 2507 (2019). Yet by what “standard” or “rule” is

a judge to decide which workers outside the transportation industry fall within the § 1 exemption? Is it

enough to merely work for a business whose products

are part of the flow of commerce? Rittmann v. Amazon.com, 971 F.3d 904, 917 (9th Cir. 2020). Is it

enough to sometimes transport goods across state

lines? Hill, 398 F.3d at 1288–90. How close is close

enough? How often is often enough? And above all:

Why? No “principled, rational” basis can be “found in

the * * * law[]” for any of these tests. Rucho, 139 S.

Ct. at 2507. Each is unmoored from the statute itself.

18

Businesses “crave certainty as much as almost

anything: certainty is what allows them to make longterm plans and long-term investments.” Alan Greenspan & Adrian Wooldridge, Capitalism in America: A

History 258 (2018). The last thing the business community needs is another multi-factor test. “When an

appellate judge says that the * * * issue must be decided * * * by a balancing of all the factors involved,

he begins to resemble a finder of fact more than a determiner of law.” Antonin Scalia, The Rule of Law as

a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989).

Because “each judge” will “use[] his favorite factors in

every case,” there will “be no common ground.” United

States v. Pinto, 875 F.2d 143, 145 (7th Cir. 1989).

Judges inevitably will apply disparate policies and

reach inconsistent results. A basic aspect of justice is

the like treatment of like cases. “And the trouble with

the discretion-conferring approach to judicial law

making is that it does not satisfy this sense of justice

very well.” Scalia, supra, at 1178. Although “we will

have * * * balancing modes of analysis with us forever,” those modes should “be avoided where possible.” Id. at 1187. Balancing tests sow confusion where

there should be clarity.

The Court may not choose among a panoply of

policy goals because § 1 contains no such dueling policies. There is only, on the one hand, a law that “seeks

broadly to overcome judicial hostility to arbitration

agreements,” Circuit City, 532 U.S. at 118, and, on the

other, a narrow exemption for “the workers over

whom the commerce power [i]s most apparent”—an

exemption that can be explained only as a carveout

for discrete transportation industry sectors with “established or developing statutory dispute resolution

schemes covering specific workers,” id. at 120–21.

19

Expanding § 1 beyond those “specific workers”—beyond seamen, railroad workers, and other border-hopping common carriers—“would not answer to any concern expressed to or by Congress in the debates leading up to the passage of the [FAA].” Pryner v. Tractor

Supply Co., 109 F.3d 354, 358 (7th Cir. 1997).

Petitioners’ rule, by contrast, would stretch § 1

far beyond its intended scope, transforming it from a

narrow exemption for discrete classes of transportation-industry workers to a sweeping one that can entangle any business that hires workers to move or deliver goods. This Court should not engage in a flight

of logical fancy to extend § 1; rather, it should deploy

some common sense to constrain it.

Mindful that Congress fixed its attention in § 1

on discrete classes of transportation-industry workers

most likely to enjoy their own distinct federal remedial schemes, this Court should construe “any other

class of workers engaged in foreign or interstate commerce” to include only those workers in the transportation industry who are key to carrying goods or passengers across state or national borders. Petitioners

do not meet that test. They look nothing like the “seamen” and “railroad employees” Congress set out in

§ 1 to excuse from the FAA. Like most other workers,

they must honor their arbitration agreements.

*

*

*

The Second Circuit’s “transportation industry”

test is a reliable and easily administrable rule for construing § 1 of the FAA. It honors both the text and the

historical context of the FAA. It also provides businesses with much-needed certainty about whether

20

their arbitration agreements fall within § 1’s transportation-worker exemption. This Court should adopt

it.

CONCLUSION

The Second Circuit’s judgment should be affirmed.

Respectfully submitted,

December 18, 2023

CORY L. ANDREWS

Counsel of Record

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org