Petition for Writ of Certiorari — Aircraft Service International, Inc., et al., Petitioners v. Danny Lopez

No. 24In the

Supreme Court of the United States

AIRCRAFT SERVICE INTERNATIONAL, INC.,

AND MENZIES AVIATION (USA), INC.,

Petitioners,

v.

DANNY LOPEZ,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Kevin Jackson

Foley & Lardner LLP

11988 El Camino Real,

Suite 400

San Diego, CA 92130

John FitzGerald

Foley & Lardner LLP

777 East Wisconsin Avenue

Milwaukee, WI 53202

Christopher Ward

Counsel of Record

Foley & Lardner LLP

555 S. Flower Street,

Suite 3300

Los Angeles, CA 90071

(213) 972-4500

cward@foley.com

Counsel for Petitioners

November 26, 2024

333603

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

The Federal Arbitration Act (“FAA”) does not apply to

“contracts of employment of seamen, railroad employees,

or any other class of workers engaged in foreign or

interstate commerce.” 9 U.S.C. § 1.

In Southwest Airlines Co. v. Saxon, 596 U.S. 450

(2022), this Court held that airline ramp supervisors

who frequently load and unload cargo are exempt

“transportation workers” because they “directly”

transported interstate goods by “physically” moving

cargo. Subsequent courts have applied Saxon by following

this clear, practical language. E.g., Bissonnette v. LePage

Bakeries Parks St., LLC, 601 U.S. 246 (2024) (Saxon

focuses on the work performed, not the employer’s

industry); Fraga v. Premium Retail Servs., Inc., 61

F.4th 228 (1st Cir. 2023); Ortiz v. Randstad Inhouse

Servs., LLC, 95 F.4th 1152 (9th Cir. 2024) (workers who

moved goods only small distances are exempt because

they physically move the goods), cert. denied (U.S. Oct.

7, 2024) (23-1296). This case departs from Saxon and

violates Bissonnette’s instruction to avoid “mini trials”

caused by failing to give 9 U.S.C. § 1 the required narrow

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

105, 123 (2001). The Ninth Circuit found that workers who

do not have direct involvement with nor physically move

goods are transportation workers if they play some “vital

component” in the process of transportation.

The question presented is: Whether workers who

fuel airplanes, but who never directly or physically

move interstate goods, are engaged in the interstate

transportation of goods and exempt from the Federal

Arbitration Act.

ii

PARTIES TO THE PROCEEDING

All parties to the proceeding are set forth in the

caption.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to this Court’s Rule 29.6, undersigned

counsel state that (1) Aircraft Service International,

Inc. and Menzies Aviation (USA), Inc. are both wholly

owned by Menzies Aviation, Inc., which is a wholly owned

subsidiary of John Menzies Limited, a foreign corporation.

John Menzies Limited is completely privately owned and

is not traded publicly anywhere in the world. No publicly

held company owns any portion of the stock of any parent

or subsidiary entity of Petitioners.

iv

RELATED PROCEEDINGS

Pursuant to this Court’s Rule 14.1(b)(iii), the following

proceedings are related to this case:

• Lopez v. Aircraft Service Int’l, Inc., et al., 21-CV07108-DMG-Ex (C.D. Cal.) (order issued December 9,

2022).

• Lopez v. Aircraft Service Int’l, Inc.; Menzies

Aviation (USA), Inc., No. 23-55015 (9th Cir.) (judgment

entered July 19, 2024, petition for rehearing en banc

denied August 29, 2024).

There are no additional proceedings in any court that

are directly related to this case.

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

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

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 7

I.

Fa ct s a nd P rocedu ra l H i st or y

Lea d i ng Up To T he Ni nt h Ci rcu it

Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

II. Courts’ Application Of Saxon During

The Pendency Of The Ninth Circuit

Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

vi

Table of Contents

Page

III. T he Ni nth Ci rcu it ’s Creat ion Of A

“Vital Component” Test Weighing The

Importance Of Work To Transportation,

Not The Duties Workers Perform . . . . . . . . . . . 12

REASONS FOR GRANTING THE PETITION . . . . 14

I.

The Ninth Circuit’s Lopez Decision Is

A n Unprecedented Departure From

S a x o n ’s C a r e f u l L a n g u a g e T h a t

Creates An Impermissibly Broad “Vital

Component” Test . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Lopez Is An Unprecedented Departure

From Saxon . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. The Ninth Circuit’s Reliance On

Rittman Is Improper . . . . . . . . . . . . . . . . . . 19

C. Lopez Violates The Requirement

To Construe The Transportation

Exemption Narrowly . . . . . . . . . . . . . . . . . . 20

II. Lopez Creates An Intra-Circuit Conflict

( With Or tiz) A nd A n Int er - Ci rcu it

Conflict With The First Circuit (With

Fraga) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

vii

Table of Contents

Page

III. If Lopez Is Left Uncorrected, It Will

Continue To Breed Litigation And Is

Already Doing So . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

viii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED JULY 19, 2024 . . . . . . 1a

APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA,

FILED DECEMBER 9, 2022 . . . . . . . . . . . . . . . . . 17a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

AUGUST 29, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24a

ix

TABLE OF CITED AUTHORITIES

Cases

Page

Allied-Bruce Terminix Cos. v. Dobson,

513 U.S. 265 (1995) . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 25

Amaya et al. v. Menzies Aviation (USA), Inc.,

No. 22-CV-05915-HDV-MAR . . . . . . . . . . . . . . . 27, 28

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Bissonnette v. LePage Bakeries Park St., LLC,

49 F.4th 655 (2d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 25

Bissonnette v. LePage Bakeries Parks St., LLC,

601 U.S. 246 (2024) . . . . 5, 6, 9, 10, 12-17, 19-23, 26, 27

Circuit City Stores, Inc. v. Adams,

194 F.3d 1070 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . 25

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) . . . . . . . . . . . . . . 3-6, 12, 13, 15-17,

20, 22, 23, 25, 26

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fraga v. Premium Retail Servs., Inc.,

61 F.4th 228 (1st Cir. 2023) . . . . . . 10, 14, 18, 22-24, 26

x

Cited Authorities

Page

Fraga v. Premium Retail Servs., Inc.,

704 F. Supp. 3d 289 (D. Mass. Dec. 5, 2023) . . . 10, 11,

18, 23, 24, 26

Green Tree Fin. Corp. v. Rudolph,

531 U.S. 79 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Holley-Gallegly v. TA Operating, LLC,

No. ED CV 22-593-JGB,

2022 WL 9959778 (C.D. Cal. Sept. 16, 2022),

vacated, 74 F.4th 997 (9th Cir. 2023) . . . . . . . . . . . . . 9

Joyner et al. v. Frontier Airlines, Inc. et al.,

No. 24-CV-01672-SKC-KAS . . . . . . . . . . . . . . . . 26, 28

Lopez v. Aircraft Service Int’l Inc., et al.,

No. 7108,

2022 WL 18232726 (C.D. Cal. Dec. 9, 2022) . . . . . . . . 1

Lopez v. Aircraft Service Int’l, Inc.,

107 F.4th 1096 (9th Cir. 2024) . . . . . . . . . 1, 7-9, 14, 15,

17, 18, 20, 22-28

Ortiz v. Randstad Inhouse Servs., LLC,

95 F.4th 1152 (9th Cir. 2024),

cert. denied (U.S. Oct. 7, 2024) (23-1296) . . . . . . 10-12,

14, 20, 22-24

Palcko v. Airborne Express, Inc.,

372 F.3d 588 (3rd Cir. 2004) . . . . . . . . . . . . . . . . . . . . 14

xi

Cited Authorities

Page

Rittmann v. Amazon.com, Inc.,

971 F.3d 904 (9th Cir. 2020) . . . . . . 9, 13, 15, 19, 20, 23

Saxon v. Sw. Airlines,

993 F.3d 492 (7th Cir. 2021) . . . . . . . . . . . . . . . . . . 5, 19

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) . . . . . . . . . . . . . . . . . . . 4-7, 9-24, 26

Statutes, Rules and Regulations

9 U.S.C. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 6

9 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

28 U.S.C. § 1441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

28 U.S.C. § 1446 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

45 U.S.C. § 151 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Alternative Dispute Resolution Policy (“ADR Policy”) . 8

California Private Attorneys’ General Act (“PAGA”) . . 8

Central District of California Local Rule 7-3 . . . . . . . . 27

xii

Cited Authorities

Page

Fed. R. App. P. 28(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Supreme Court Rule 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

OPINIONS BELOW

The Ninth Circuit’s Opinion is reported at Lopez v.

Aircraft Service Int’l, Inc., 107 F.4th 1096 (9th Cir. 2024)

and is reproduced at App. 1a. The Ninth Circuit’s denial of

rehearing en banc is reproduced at App. 25a. The Central

District of California’s Order Denying Defendant’s Motion

to Compel Arbitration is reported at Lopez v. Aircraft

Service Int’l Inc., et al., No. 7108, 2022 WL 18232726 (C.D.

Cal. Dec. 9, 2022) and is reproduced at App. 17a.

JURISDICTION

The Ninth Circuit denied rehearing en banc on August

29, 2024 after issuing an opinion on July 19, 2024 affirming

the District Court’s December 9, 2022 order denying the

Petitioners’ motion to compel arbitration. Pursuant to this

Court’s Rule 13, this petition is due 90 days after the date

of the lower court’s denial of rehearing en banc. The Court

has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 1 of the Federal Arbitration Act, 9 U.S.C. § 1,

provides, in relevant part:

“Maritime transactions”, as herein defined,

means charter parties, bills of lading of water

carriers, agreements relating to wharfage,

supplies furnished vessels or repairs to

vessels, collisions, or any other matters

in foreign commerce which, if the subject

of controversy, would be embraced within

admiralty jurisdiction; “commerce”, as herein

2

defined, means commerce among the several

States or with foreign nations, or in any

Territory of the United States or in the District

of Columbia, or between any such Territory

and another, or between any such Territory

and any State or foreign nation, or between the

District of Columbia and any State or Territory

or foreign nation, but nothing herein contained

shall apply to contracts of employment of

seamen, railroad employees, or any other class

of workers engaged in foreign or interstate

commerce.

Section 2 of the Federal Arbitration Act, 9 U.S.C. § 2,

provides:

A written provision in any maritime transaction

or a contract evidencing a transaction involving

commerce to settle by arbitration a controversy

thereafter arising out of such contract or

transaction, or the refusal to perform the whole

or any part thereof, or an agreement in writing

to submit to arbitration an existing controversy

arising out of such a contract, transaction,

or refusal, shall be valid, irrevocable, and

enforceable, save upon such grounds as exist

at law or in equity for the revocation of any

contract or as otherwise provided in chapter 4.

INTRODUCTION

The Federal Arbitration Act, which requires courts

to enforce arbitration agreements absent statutory

exceptions otherwise, was enacted nearly 100 years ago to

3

codify a broad federal policy of eliminating the historical

(and continuing) disfavoring of arbitration provisions

as compared to other contracts. 9 U.S.C. § 2; Epic Sys.

Corp. v. Lewis, 584 U.S. 497, 505 (2018); AT&T Mobility

LLC v. Concepcion, 563 U.S. 333, 339 (2011) (“[C]ourts

must place arbitration agreements on an equal footing

with other contracts . . . and enforce them according to

their terms”). The FAA applies to almost all arbitration

agreements between employers and employees, except for

“contracts of employment of seamen, railroad employees,

or any other class of workers engaged in foreign or

interstate commerce.” 9 U.S.C. § 1 (hereinafter, the

“Transportation Exemption”1). The drafters of the FAA

included the Transportation Exemption so as not to

unsettle “established or developing statutory dispute

resolution schemes covering” those workers. Circuit City,

532 U.S. at 121.

Because the FAA “seeks broadly to overcome hostility

to arbitration agreements,” this Court held in Circuit City

that the Transportation Exemption should be construed

narrowly. Id. at 118 (quoting Allied-Bruce Terminix Cos.

v. Dobson, 513 U.S. 265, 272–73 (1995)). In that case, this

Court rejected the argument that the exemption should

apply to all employment contracts and instead held that

the FAA applies only to “contracts of employment of

transportation workers.” Id. at 109, 114. The Court relied

on ejusdem generis, a canon of statutory construction by

which a catchall phrase in a statute (here, the residual

clause) is interpreted to “embrace only objects similar” to

1. The portion of the Transportation Exemption at issue

in Circuit City and this matter is commonly referred to as “the

residual clause.” Circuit City, 532 U.S. at 114.

4

those enumerated. Id. at 114. The Court explained that a

broader interpretation of the Transportation Exemption

would “breed[ ] litigation from a statute that seeks to avoid

it.” Id. at 123 (quoting Allied-Bruce, 513 U.S. at 275).

Roughly twenty years after Circuit City, this Court

revisited the Transportation Exemption in Southwest

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

Court established a two-part test for analyzing whether

the Transportation Exemption applies. First, a court must

determine the “class of workers” at issue, and then once

it has done so, it must determine whether that class of

workers is “engaged in foreign or interstate commerce.”

Id. at 455. In terms of analyzing the second step of that

test, Saxon instructs courts to consider whether the

workers have “direct” and “physical” involvement with the

movement of interstate goods that is sufficiently “active”

and “frequent” to trigger the narrow exemption. Id. at

455–58.

Critically, Saxon directs courts engaging in this

analysis to focus on the actual work the class of workers

performs—not on the nature of the employer’s operations.

The class of workers at issue in Saxon were airline ramp

supervisors. This Court applied the Transportation

Exemption to such workers by explicitly and repeatedly

relying on the fact that they frequently and physically

loaded and unloaded cargo on and off airplanes and

thus had the requisite level of “direct” involvement in

interstate transportation. Id. at 463. Highlighting the

potentially controlling effect of the need for this “direct”

involvement in a footnote, the Court specifically raised the

question of whether “supervision of cargo loading alone

would suffice,” at least suggesting that this small step

5

away from having frequent and direct physical contact

with the goods was enough to draw the boundary around

the narrow Transportation Exemption. Id. at 456 n.1

(quoting Saxon v. Sw. Airlines, 993 F.3d 492, 497 (7th Cir.

2021)). However, the Court in Saxon left resolution of that

question for another day. Id.

Earlier this year, this Court reiterated in Bissonnette

the point it earlier made in Saxon—that a proper

Transportation Exemption analysis does not consider the

employer’s industry or the nature of its operations, but

rather the actual work performed by the class of workers

at issue. 601 U.S. at 247. Bissonnette reasoned that such

an industry-based analysis:

would often turn on arcane riddles about the

nature of a company’s services. For example,

does a pizza delivery company derive its revenue

mainly from pizza or delivery? Extensive

discovery might be necessary before deciding

a motion to compel arbitration, adding expense

and delay to every FAA case. That “complexity

and uncertainty” would “‘breed[ ] litigation

from a statute that seeks to avoid it.’”

Id. (quoting Circuit City, 532 U.S. at 123). Elaborating

on these concerns, this Court also observed that such

expansive approaches at odds with Saxon would result in

“mini-trials” on the Transportation Exemption test that

“could become a regular, slow, and expensive practice

in FAA cases.” Id. Bissonnette closed its analysis by

returning to this Court’s direction that the residual clause

does not permit a “sweeping, open-ended construction”

and that courts must limit it “to its appropriately ‘narrow’

6

scope.” Id. at 256 (quoting Circuit City, 532 U.S. at 118). By

rejecting the premise that analysis of the Transportation

Exemption should allow for extensive discovery, and by

reminding lower courts of the need to apply it narrowly

and avoid creating complex and uncertain questions,

Bissonnette also directly tied these points to its holding in

Saxon and expressly invoked the need for a transportation

worker to be “actively” engaged in the movement of

interstate goods, measured by their “direct and necessary

role” in the goods’ movement. Id.

Saxon and Bissonnette both explicitly instruct courts

to focus on the job duties performed by the class of workers

at issue. Bissonnette, 601 U.S. at 253–54 (“[9 USC § 1]

“focuses on ‘the performance of work’ rather than the

industry of the employer’” and “says nothing to direct

courts to consider the industry of a worker’s employer.

The relevant question is ‘what [the worker] does’” (quoting

Saxon, 596 U.S. at 456)); Saxon, 596 U.S. at 451 (“[T]he

word ‘engaged’ [in 9 USC § 1] emphasizes the actual work

that class members typically carry out. Saxon is therefore

a member of a ‘class of workers’ based on what she

frequently does at Southwest.”). In this matter, the Ninth

Circuit violated this instruction and focused not on what

the workers do, but rather on a subjective value judgment

of how important the workers’ duties are to the process

of transportation. Looking not to whether the workers

“directly” and “physically” moved interstate goods, but

instead to whether their work was a “vital component” to

the movement of interstate goods, the Ninth Circuit here

endorsed the first-ever application of the Transportation

Exemption to a class of workers who never themselves

move interstate goods nor directly supervise employees

who do so.

7

In so doing, the Ninth Circuit has strayed from this

Court’s precedents, created a split within itself from

another Ninth Circuit opinion that is faithful to Saxon’s

bottom line, and a split with the First Circuit by effectively

reading away Saxon’s “frequency” requirement from the

analysis. In the handful of months since its publication,

Lopez is already breeding litigation and creating minitrials on motions to compel arbitration because, under

Lopez, even employees who perform office work are

now arguing they are transportation workers because

what they do is “vital” to the larger process of moving

goods interstate. It is critical that this Court once more

intervene in lower courts’ failure to narrowly construe the

Transportation Exemption and adhere to its precedents.

This Court should grant certiorari and reverse.

STATEMENT OF THE CASE

I.

Facts and Procedural History Leading Up To The

Ninth Circuit Proceedings

The Menzies Aviation enterprise, which includes

the operating companies Aircraft Service International,

Inc. and Menzies Aviation (USA), Inc. that are formally

the Petitioners here (hereinafter collectively “Menzies”),

provides a full range of aviation ground support services

primarily to major international and domestic airlines

throughout the world. The services include into-plane

fueling and fuel farm management, and passenger and

ramp handling services, among other things. Mr. Lopez

worked as a fueler at Menzies’ operations at Los Angeles

International Airport (“LAX”). App. 18a. Fuelers like

Mr. Lopez do not have any involvement in loading cargo,

8

passenger baggage, or any other type of goods onto or

off of aircraft, nor do they supervise others who do. See

id. at 21a. Moreover, as the District Court explicitly

recognized, the jet fuel that fuelers pump into aircraft is

not an interstate good. Id. at 22a.

Menzies maintains an Alternative Dispute Resolution

Policy (“ADR Policy”) for its operations in the United

States, including LAX. Id. at 19a. Employees who choose

to be bound by the ADR Policy agree that any claims

arising from their employment at Menzies, other than

certain categories of statutorily excluded claims, must

be brought in binding arbitration. Id. During Mr. Lopez’s

employment with Menzies, Mr. Lopez executed the ADR

Policy. Id.

Despite having done so, Mr. Lopez filed a putative

class action against Menzies in the Superior Court of

California, County of Los Angeles under the California

Private Attorneys’ General Act. Id. at 2a-2b. Menzies

timely removed the case to the United States District

Court for the Central District of California pursuant to 28

U.S.C. §§ 1332, 1441 and 1446, and the Railway Labor Act,

45 U.S.C. § 151 et seq., then moved to compel arbitration.

Id. at 2c. Mr. Lopez opposed, arguing that fuelers have a

sufficient nexus to the interstate transportation of goods

so as to be included within the Transportation Exemption.

On reply, Menzies argued that Mr. Lopez fell outside the

Transportation Exemption because, as a fueler, he had no

direct involvement in the process of transporting goods

because he had no physical contact with goods or cargo.

See id. at 3a. Mr. Lopez merely put fuel onto aircraft, and

jet fuel is not goods or cargo. See id.

9

The District Court applied the Transportation

Exemption to Mr. Lopez and denied Menzies’ motion. The

District Court explained: “Although an employee who adds

fuel to cargo planes is not literally moving goods (as the

plaintiffs in Saxon and Rittmann did), he is closer both

physically and temporally to the actual movement of goods

between states than a truck mechanic who works on trucks

that move goods in interstate commerce (as was the case

in Holley-Gallegly).” App. 22a (citing Holley-Gallegly v.

TA Operating, LLC, No. ED CV 22-593-JGB, 2022 WL

9959778 (C.D. Cal. Sept. 16, 2022), vacated, 74 F.4th 997

(9th Cir. 2023)). Accordingly, the District Court found

that “fueling cargo planes that carry goods in interstate

commerce is ‘so closely related to interstate transportation

as to be practically a part of it.’” Id. (quoting Saxon, 596

U.S. at 457). Notably, in using this language, the District

Court confirmed that it was applying the Transportation

Exemption without finding Mr. Lopez ever had “direct”

and “physical” contact with interstate goods and “actual”

involvement in their movement consistent with Saxon’s

language—only that Mr. Lopez performed his work in

close physical and temporal proximity to transportation

workers and thus performed duties “closely related to”

movement of goods. Menzies timely appealed to the Ninth

Circuit.

II. Courts’ Application Of Saxon During The Pendency

Of The Ninth Circuit Proceedings

While this appeal was pending, federal courts

published four key Transportation Exemption opinions—

one by the First Circuit, one by the Ninth Circuit,

one by the District of Massachusetts, and this Court’s

Bissonnette opinion. On March 3, 2023, the First Circuit

10

issued Fraga v. Premium Retail Servs., Inc., 61 F.4th

228 (1st Cir. 2023) (Fraga I); on December 5, 2023, the

District of Massachusetts issued Fraga v. Premium

Retail Servs., Inc., 704 F. Supp. 3d 289 (D. Mass. 2023)

(Fraga II); on March 12, 2024, the Ninth Circuit issued

Ortiz v. Randstad Inhouse Servs., LLC, 95 F.4th 1152 (9th

Cir. 2024); and on April 12, 2024, this Court issued the

Bissonnette opinion. Menzies notified the panel hearing

this matter before the Ninth Circuit of each of these

opinions pursuant to Fed. R. App. P. 28(j).

In Fraga I, the First Circuit considered a class of

workers called display merchandisers whose primary

job duties did not include the movement of interstate

goods. On occasion however, merchandisers received

marketing and promotional materials at their homes

and had responsibility for directly transporting the

materials to their assigned stores for display. Fraga I,

61 F.4th at 230. The First Circuit held that this direct

physical movement of interstate goods could be enough to

trigger the Transportation Exemption, so long as these

particular duties were performed frequently enough

to satisfy Saxon’s second prong. Id. at 237. The First

Circuit remanded the case for fact finding on frequency,

and advised the lower court that “two or more hours

most every day”—which would equate to roughly 25% of

the employee’s working time—“would seem to be work

that was performed frequently.” Id. at 237. On remand,

the District of Massachusetts compared the relevant job

duties to “a worker sorting goods in a warehouse during

their interstate journey.” Fraga II, 704 F. Supp. 3d at 297.

Despite this direct, physical relationship with the goods,

the plaintiff, as the party resisting arbitration and thus

bearing the burden of proving the claims were not suitable

11

for arbitration, had not demonstrated that she performed

such direct physical work with the goods with sufficient

frequency. Id. at 297–98 (citing Green Tree Fin. Corp. v.

Rudolph, 531 U.S. 79, 91 (2000)).

In Ortiz, the Ninth Circuit applied the Transportation

Exemption to warehouse workers who themselves

physically move interstate goods within a warehouse.

Central to Ortiz’s analysis was the fact that even though

the workers at issue only physically handled and moved

goods short distances, they nevertheless physically

handled and moved the goods. 95 F.4th at 1160, 1162–63

(“Saxon’s bottom line is that . . . an employee’s relationship

to movement of the goods must be sufficiently close enough

. . . that his work plays a tangible and meaningful role

in their progress through . . . interstate commerce” and

“Though Ortiz moved goods only a short distance . . .

he nevertheless moved them. And not only did he move

them, he did so with the purpose of facilitating their

continued travel”) (emphasis supplied). Ortiz also rejected

the argument that it is improper for courts to focus only

on the goods—thus reinforcing Saxon’s language that

application of the Transportation Exemption starts from

the perspective of who “directly” and “physically” moves

the goods. Id. at 1164 (“Saxon did not improperly shift

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

inescapable fact that her job required her to handle goods

. . . 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 . . . involved

handling bags as they traveled interstate”) (emphasis

added). Further emphasizing the importance of Saxon’s

repeated invocation of “direct,” “actual” and “physical”

language, Ortiz acknowledged that employees “who do

12

not transport products across great distances and interact

with interstate commerce on a purely local basis present[s]

a particularly difficult interpretative issue,” id. at 1159,

but nonetheless faithfully applied Saxon by virtue of its

emphasis on the plaintiff ’s physical handling and directly

moving of goods even if only over short distances.

As noted supra, this Court’s Bissonnette opinion

reiterated that the Transportation Exemption analysis

depends on what the class of workers does, not the

employer’s industry and the nature of its business. 601

U.S. at 247. Given that Saxon had already explained

this, Bissonnette is as important for the rationale

behind its holding as it is for its holding—the notion

that application of the Transportation Exemption under

Saxon is straightforward and turns on practical facts,

not amorphous and nebulous concepts. Bissonnette

communicates this through its cautioning against “minitrials” that “could become a regular, slow, and expensive

practice in FAA cases” and its invocation of Saxon’s precise

language to remind lower courts that the residual clause

does not permit a “sweeping, open-ended construction”

and that courts must limit it “to its appropriately ‘narrow’

scope.” Id. at 256 (quoting Circuit City, 532 U.S. at 118).

III. The Ninth Circuit’s Creation Of A “Vital Component”

Test Weighing The Importance Of Work To

Transportation, Not The Duties Workers Perform

On July 19, 2024, the Ninth Circuit issued its opinion

in this case. The opinion is published and precedential.

9th Cir. R. 36-1 to 36-3. It rejected Menzies’ arguments

that Saxon’s plain and practical language, as understood

through Bissonnette’s cautions, requires that workers

13

must themselves move goods to satisfy the “direct,”

“actual” and “physical” components of the Transportation

Exemption analysis, contending that “[t]he Supreme Court

did not impose a requirement in Saxon that the worker

must have hands-on contact with goods and cargo or be

directly involved in the transportation of the goods.”

App. 12a. Without consideration of Saxon’s repeated

use of “direct,” “actual” and “physical” terminology,

the Ninth Circuit affirmed the District Court and held

that the Transportation Exemption applies to a class of

workers that have no direct and physical involvement in

moving interstate goods. The Ninth Circuit reached this

conclusion because “[Mr.] Lopez’s fueling of the plane—a

vital component of its ability to engage in the interstate

and foreign transportation of goods—is ‘so closely related

to interstate and foreign commerce as to be in practical

effect part of it.’” App. 11a (emphasis supplied) (quoting

Rittmann v. Amazon.com, Inc., 971 F.3d 904, 911 (9th

Cir. 2020)).

Menzies timely petitioned for rehearing en banc

arguing that the Ninth Circuit’s opinion in this case (i)

constitutes an unprecedented departure from Saxon

because it is the first case to ever apply the Transportation

Exemption to a class of workers that do not themselves

physically or directly move interstate goods or even

supervise workers who themselves move interstate goods;

(ii) will cause nationwide confusion for courts applying

the Transportation Exemption based on its amorphous

“vital component” analysis; (iii) represents a broad

interpretation of the Transportation Exemption that

will spawn litigation, contrary to this Court’s directive

in Circuit City; (iv) creates a complicated, subjective test

contrary to this Court’s directive in Bissonnette to keep

14

any FAA test simple; and (v) creates a conflict within the

Ninth Circuit (with Ortiz) and with the First Circuit (with

Fraga), decisions that faithfully applied Saxon’s direct,

physical, active, and frequent requirements. The Ninth

Circuit denied en banc review on August 29, 2024. This

petition followed.

REASONS FOR GRANTING THE PETITION

I.

The Ninth Circuit’s L opez Decision Is A n

Unprecedented Departure From Saxon’s Careful

Language That Creates An Impermissibly Broad

“Vital Component” Test

The Ninth Circuit’s and the District Court’s decisions

represent the first time ever federal courts have applied

the Transportation Exemption to a class of workers who

do not themselves move interstate goods or supervise

workers who do. 2 The Ninth Circuit panel conceded that

Mr. Lopez had no direct or physical involvement in the

movement of interstate goods. App. 11a-13a. Pursuant

to Saxon’s language and Bissonnette’s cautions, that

concession alone should have guided the panel’s analysis.

Instead, the Ninth Circuit fashioned its own analysis

untethered to Saxon’s language and instead based

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

2004), is the only circuit court opinion to uphold application of

the Transportation Exemption to workers who only supervise

those who directly move interstate goods but do not move the

goods themselves. Saxon’s footnote questioning but leaving for a

later day whether such supervisors are transportation workers

raises doubts whether the Palcko decision remains viable. In any

event, there is no dispute here that the class of workers had no

supervision over workers who themselves move interstate goods.

15

on whether the work involved is a “vital component”

to interstate transportation, and then held that the

Transpiration Exemption applies to fuelers who pump

fuel into airplanes. App. 15a. The new test created by

the Ninth Circuit is an unprecedented departure from

Saxon that relies on inapposite precedent addressing the

importance of whether workers cross state lines—an issue

not relevant here. Furthermore, the new test violates this

Court’s directives in Circuit City and Bissonnette about

interpreting the Transportation Exemption narrowly

and keeping Transportation Exemption analyses simple

so as to avoid breeding litigation out of a statute intended

to avoid it.

A.

Lopez Is An Unprecedented Departure From

Saxon

Relying on Rittmann, where the Ninth Circuit

analyzed the inapposite question whether workers who

directly and physically handled goods could qualify as

Transportation Workers despite never crossing state

lines, 3 the Ninth Circuit reasoned that “[Mr.] Lopez’s

fueling of the plane—a vital component of its ability to

engage in the interstate and foreign transportation of

goods—is ‘so closely related to interstate and foreign

commerce as to be in practical effect part of it.’” App. 11a

(emphasis supplied).

The “vital component” test is essentially a rejection

of Saxon. Casting aside Menzies’ argument for a strict

and faithful application of Saxon, the Ninth Circuit

panel stated: “The Supreme Court did not impose a

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

16

requirement in Saxon that the worker must have handson contact with goods and cargo or be directly involved

in the transportation of the goods.” App. 12a. But Saxon

effectively did just that, and Bissonnette reiterates that

the Transportation Exemption analysis does not allow for

amorphous and expansive questions like what constitutes

a “vital component” to an aircraft’s ability to transport

interstate goods.

Saxon summarized this Court’s FAA doctrine as

follows:

Taken together, these canons showed that

[the Transportation Exemption] exempted

only contracts with transportation workers,

rather than all employees, from the FA A.

And, while we did not provide a complete

definition of ‘transportation worker,’ we

indicated that any such worker must at least

play a direct and ‘necessary role in the free

flow of goods’ across borders. Put another

way, transportation workers must be actively

“engaged in transportation” of those goods

across borders via the channels of foreign or

interstate commerce.

Saxon, 596 U.S. at 458 (quoting Circuit City, 532 U.S.

at 119, 121) (emphasis supplied). Throughout the Saxon

opinion, this Court then described what “direct and

necessary” and “active engagement in transportation”

means in practical terms through its repeated focus on

the fact that the class of workers themselves physically

loaded and unloaded aircraft and thus had a clear and

direct relationship with interstate goods. Id. at 453,

456–60 (“Her work frequently requires her to load and

17

unload baggage, airmail, and commercial cargo”) (ramp

agents “physically load and unload baggage, airmail and

freight”) (“Frequently, ramp supervisors step in to load

and unload cargo alongside ramp agents”) (“Saxon belongs

to a class of workers who physically load and unload cargo

on and off airplanes on a frequent basis”) (“We think it

equally plain that airline employees who physically load

and unload cargo on and off planes traveling in interstate

commerce are, as a practical matter, part of the interstate

transportation of goods”) (“Likewise, any class of workers

that loads or unloads cargo on and off airplanes bound

for a different State or country is ‘engaged in foreign or

interstate commerce’”). The Court then re-emphasized

the importance of this language and its easy-to-apply

nature in Bissonnette, where it reminded lower courts

that the residual clause does not permit a “sweeping,

open-ended construction” and that courts must limit it

“to its appropriately ‘narrow’ scope.” Id. at 256 (quoting

Circuit City, 532 U.S. at 118).

The Ninth Circuit’s analysis in Lopez and the outcome

it reached cannot and do not follow this Court’s precedents,

and its turn to what qualifies as a “vital component” is

effectively a rejection of Saxon because it disregards the

second part of the Saxon test. Saxon and Bissonnette

both explicitly instruct courts to focus on what the class

of workers does. The Lopez analysis focuses not on what

the workers do, but rather a court’s subjective view of the

importance of a workers’ efforts in the larger mechanism

of transportation. Understood this way, the Lopez analysis

simply does not apply and follow the test mandated by

Saxon.

18

If Lopez remains good law, then going forward,

courts considering the Transportation Exemption must

essentially apply two tests. First, courts will have to apply

Saxon and consider whether an employee has a direct,

physical role in the transportation of interstate goods.

Under Saxon, if the answer is no, that ends the analysis.

Under Lopez however, if the answer is no, courts must

still ask whether the worker’s role is a vital component to

the transportation of interstate goods and grapple with

what qualifies as sufficiently “vital.”

These are two entirely different analyses. Whether a

worker has a direct and physical role in moving interstate

goods is a simple question to answer that will not require

mini-trials or extensive discovery. And as the Fraga cases

reinforce, Saxon’s “frequency” requirement becomes

essentially meaningless if untethered from how often

the class of workers directly move interstate goods. By

contrast, determining whether a worker’s role is a vital

component in interstate travel, so closely related to the

transportation of goods as to be essential a part of it, is

not so simple. Answers to these questions will not be found

in job descriptions or simple testimony from workers or

their supervisors, and will instead allow for discovery

and argument about what qualifies as “vital.” If aircraft

fuelers are vital, what else might be vital? Mechanics

who never touch goods or cargo but who play a necessary

role in keeping aircraft flying? Air traffic controllers who

never touch goods or cargo but control the movement

of aircraft? Engineers and assembly line workers who

design, manufacture, and supply the equipment that

creates the airplanes? Patentholders who own the patents

for the technology necessary to make the airplanes?

19

The Ninth Circuit’s “vital component” analysis also

effectively reads away the “frequency” element from

Saxon. A worker’s role is either a vital component closely

related to interstate commerce, or it is not. For example,

if a Boeing engineer is vital because she designed the

aircraft used in interstate transportation, there is no need

to inquire into how frequently she designs new planes. In

other words, the “active” and “frequent” requirements

set forth in Saxon lose practical meaning absent their

connection to their counterpart—the “direct, physical”

movement of goods. The “vital component” test—if left

unchanged—represents a complete alternative framework

to Saxon that does not square with Saxon and violates

Bissonnette’s instructions not to allow a simple motion to

compel arbitration to devolve into a mini-trial.

B. The Ninth Circuit’s Reliance On Rittmann Is

Improper

As explained above, the Ninth Circuit’s reliance on

Rittmann, a pre-Saxon decision, was improper. Put

bluntly, Rittmann is completely irrelevant to the questions

raised by this case. In Rittmann, the Ninth Circuit

considered whether workers who physically handled

interstate goods but did not transport them across state

lines qualified as transportation workers. See 971 F.3d at

907. The narrow issue was whether the Transportation

Exemption turns on the crossing of state lines. Menzies

has never argued that the physical movements of fuelers

like Mr. Lopez have any bearing on the analysis, and for

good reason: Saxon put any lingering doubts about that

issue to rest by applying the Transportation Exemption

to a class of workers that performed all their duties at one

airport. See Saxon, 993 F.3d at 494, aff ’d, 596 U.S. 450.

20

The crossing of state lines is not and has never been

an issue in this matter, meaning Rittmann’s analysis has

no relevance and the Ninth Circuit was wrong to use it

to fashion a “vital component” test. What matters here is

the same thing that mattered in Ortiz: “[N]ot the worker’s

geography but his work’s connection with—and relevance

to—the interstate flow of goods.” Ortiz, 95 F.4th at 1162.

Accordingly, because it arises out of Rittmann, the Ninth

Circuit’s test rests on a faulty foundation.

C.

Lopez Violates The Requirement To Construe

The Transportation Exemption Narrowly

The Ninth Circuit’s “vital component” test broadens

the Transportation Exemption, injects complexity and

unpredictability, and will undoubtedly spawn litigation—

indeed, as noted infra, it has already begun to do so. This

goes directly against this Court’s repeated instruction

to give the Transportation Exemption “a narrow

construction.” Circuit City, 532 U.S. at 118. Lower courts

are to avoid constructions that ‘breed[ ] litigation from a

statute that seeks to avoid it,’” id. at 123, and that prompt

“[e]xtensive discovery” which would “add[ ] expense and

delay to every FAA case.” Bissonnette, 601 U.S. at 247.

Lopez does the opposite. It marks a novel expansion of

the Transportation Exemption, resulting in its first-ever

application to workers who never directly handle interstate

goods nor supervise workers who do. It is the first postSaxon case to apply the Transportation Exemption

without any objectively discernable facts to drive the legal

analysis. Saxon asks whether a worker has “direct” and

“physical” involvement with the movement of interstate

goods—questions easily answered by facts drawn from

21

a job description, employee testimony, or supervisor

testimony. The same is true for discerning whether the

involvement is “frequent.” However, discerning whether

a worker’s role is a “vital component” to the movement

of interstate goods, or whether it is “so closely related

to interstate and foreign commerce as to be in practical

effect part of it” calls on subjective judgments about

nebulous concepts. How far do courts draw such lines

and how do they justify them against Saxon’s suggestion

that even mere supervision of transportation workers

without performing direct physical movement of goods

might be enough to fall outside the narrow Transportation

Exemption? 596 U.S. at 456 n.1.

By introducing this nebulous, subjective alternative

to Saxon, the Ninth Circuit’s decision swings wide open

the door for workers to argue that the Transportation

Exemption should apply to them even if they do not have

any relationship to goods. But courts need standards they

can apply in this arena consistently and uniformly, and

this Court has filled this need with the clear instructions

from Saxon and Bissonnette. The Ninth Circuit’s Lopez

opinion departs from these standards and does the

opposite, begging the questions of “how far does ‘so closely

related’ go and what qualifies as a ‘vital component’ of

an interstate vehicle’s ability to make its journey?” Once

more, it seems the lower courts require this Court to

reiterate that the FAA is a statute that seeks to avoid

litigation and requires narrow construction, not minitrials on nebulous questions.

22

II. Lopez Creates An Intra-Circuit Conflict (With

Ortiz) And An Inter-Circuit Conflict With The First

Circuit (With Fraga)

As noted supra, another panel in the Ninth Circuit

issued Ortiz four months before Lopez’s publication. In

applying the Transportation Exemption to a class of

workers who themselves physically move goods within a

warehouse, the Ortiz panel carefully anchored its analysis

on Saxon’s “bottom line” and followed its meaning through

repeated signaling of the importance that workers directly

handle goods even if only moving them a short distance.

95 F.4th at 1160–64 (“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”)

(“Though Ortiz moved goods only a short distance . . . he

nevertheless moved them”) (“Saxon did not improperly

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

the inescapable fact that her job required her to handle

goods . . . 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

. . . involved handling bags as they traveled interstate”)

(emphasis supplied). By faithfully following Saxon by

virtue of its emphasis on the plaintiff ’s physical handling

and directly moving goods, Ortiz affords a pragmatic

(and therefore narrow) application of the Transportation

Exemption consistent with the mandates of Circuit City

and Bissonnette.

Unlike Ortiz, Lopez fails to confront Saxon’s language

detailing the need for “direct,” “physical,” “active” and

“frequent” involvement with the movement of goods.

Taken together, Ortiz and Lopez create a fracture within

23

the Ninth Circuit—there are, effectively, two different

(and disharmonious) analyses for deciding whether to

apply the Transportation Exemption, one that explicitly

identifies and follows Saxon’s “bottom line” and another

that depends on language from Rittmann relating to

inapposite geographic movement to find fuelers’ work a

“vital component” of an aircraft’s movement. The Lopez

opinion also offers no meaningful consideration of Ortiz’s

analysis or discussion of how the two outcomes can work in

tandem, let alone how district courts can apply both cases

consistently. Ortiz, grounded in analysis emphasizing the

same direct, physical relationship with the goods key to

Saxon, is the better authority because (1) it faithfully

follows this Court’s directives in Circuit City, Saxon and

Bissonnette, and (2) it is a simple, workable framework

that turns on objective facts, whereas the novel test

established in Lopez turns on nebulous and subjective

value judgments, which will produce varying outcomes,

increase litigation, and reduce the predictability of the

law in this space.

Lopez also conflicts with the Fraga I decision issued

by the First Circuit and the District of Massachusetts’

subsequent application of Fraga I in Fraga II. The

Fraga cases turned on the frequency by which workers

handled and moved interstate goods. The First Circuit

found that the class of workers at issue (merchandisers

who physically sort, load, and transport goods) had some

direct physical contact with and movement of goods

but remanded the case for fact-finding on whether the

merchandisers could satisfy their burden to demonstrate

that they directly and frequently engaged in such tasks as

required by Saxon. Fraga I, 61 F.4th at 237. On remand,

after careful scrutiny of the evidence, the district court

24

declined to apply the Transportation Exemption. It

found that the merchandisers’ direct movement of goods

occurred a couple of times a week for no more than an hour

at a time, which the district court held was insufficiently

frequent to trigger the Transpiration Exemption. Fraga

II, 704 F. Supp. 3d at 297. By understanding that Saxon’s

“frequency” requirement can only be measured against

Saxon’s counterpart requirement—the “direct, physical”

movement of goods—the Fraga cases reinforce the

principle that “direct handling” is the “central feature of a

transportation worker” for purposes of the Transportation

Exemption. Saxon, 596 U.S. at 459.

The analysis crafted by the Ninth Circuit in Lopez

effectively creates a split amongst the First and Ninth

Circuits. One decision understands the paramount

importance of frequent direct handling and movement

of interstate goods, the other effectively erases that

frequency requirement by focusing on the impact the

employee’s duties have on transportation rather than what

the workers’ duties are. Were Lopez binding on the First

Circuit when it decided Fraga, the Fraga panel would

have had to conduct an entirely different analysis. Before

it could have remanded the case to the district court, it

would have had to consider how important merchandisers

are to the transportation process, making the “frequency”

analysis practically irrelevant and unnecessary.

For the same reasons as Ortiz, Menzies submits that

Fraga I, grounded in analysis emphasizing the workers’

direct, physical relationship with the goods and the

frequency by which the workers move such goods that is

key to Saxon, is the better authority.

25

III. If Lopez Is Left Uncorrected, It Will Continue To

Breed Litigation And Is Already Doing So

Before the case reached this Court, the Ninth Circuit

in Circuit City Stores, Inc. v. Adams, 194 F.3d 1070 (9th

Cir. 1999) gave the Transportation Exemption a sweeping

interpretation, applying it to all employment contracts.

This Court reversed, cautioning that:

The considerable complexity and uncertainty

that the construction of [the Transportation

Exemption] urged by respondent would

introduce into the enforceability of arbitration

agreements in employment contracts would

call into doubt the efficacy of alternative

dispute resolution procedures adopted by

many of the Nation’s employers, in the process

undermining the FAA’s proarbitration purposes

and “breeding litigation from a statute that

seeks to avoid it.”

Circuit City, 532 U.S. at 118 (citing Allied-Bruce, 513 U.S.

at 275). The Second Circuit similarly erred in Bissonnette

v. LePage Bakeries Park St., LLC, 49 F.4th 655 (2d Cir.

2022), prompting this Court to explain that straying from

a surgical focus on what workers themselves do will result

in Transportation Exemption analysis that:

would often turn on arcane riddles about the

nature of a company’s services. For example,

does a pizza delivery company derive its revenue

mainly from pizza or delivery? Extensive

discovery might be necessary before deciding

a motion to compel arbitration, adding expense

26

and delay to every FAA case. That “complexity

and uncertainty” would “‘breed[ ] litigation

from a statute that seeks to avoid it.’”

Bissonnette, 601 U.S. at 247. The Ninth Circuit’s Lopez

opinion repeats the fundamental error of giving broad

interpretation of the Transportation Exemption that

creates “considerable complexity and uncertainty” likely

to “breed litigation from a statute that seeks to avoid it.”

Bissonnette, 601 U.S. at 247; see Circuit City, 532 U.S.

at 123.

These are not hyperbolic concerns about what may

happen if this Court allows Lopez to stand; rather, the

Pandora’s Box opened by the opinion is already playing

out in real time. Menzies and district courts are already

experiencing the adverse effects of the Ninth Circuit’s

expansive interpretation of the Transportation Exemption,

and Menzies is currently preparing for classification-byclassification mini trials on motions to compel arbitration.

For example, in Joyner et al. v. Frontier Airlines, Inc. et

al., No. 24-CV-01672-SKC-KAS, the District of Colorado

has before it a fully briefed motion filed by Menzies

seeking to compel arbitration of claims brought by a class

of Customer Service Agents who virtually never directly

handle passenger baggage. The plaintiffs have cited

Lopez in opposition to arbitration, arguing that the work

of Customer Service Agents is critical to the process of

transporting interstate goods. If the District of Colorado

relies on Lopez to deny arbitration instead of focusing on

the class of workers’ direct relationship with interstate

cargo and frequency thereof, it will create another ruling

at odds with Saxon, Bissonnette, and the Fraga cases.

27

Even more troublesome is Amaya et al. v. Menzies

Aviation (USA), Inc., No. 22-CV-05915-HDV-MAR, where

the Central District of California will soon be asked to

rule on a motion to compel arbitration that the plaintiffs

are resisting with respect to every Menzies non-exempt

classification in California—including administrative

assistants, recruiters and other office personnel. 4

Before Lopez, it would have been frivolous to argue that a

recruiter working a desk job triggers the Transportation

Exemption merely because her work is “vital” to

transportation since employers cannot conduct their

business if they cannot fill the positions responsible for

moving interstate goods. Bissonnette clearly rejects this

premise, yet relying on Lopez, litigants like the plaintiffs

4. As of the submission of this petition, Menzies has yet to file

the motion to compel arbitration in Amaya but anticipates doing so

within weeks of this petition’s filing such that this Court will have

the opportunity to review those filings to understand the scope of

the classifications involved and their lack of direct involvement in

the movement of interstate goods. However, Central District of

California Local Rule 7-3 requires the parties to meet and confer

prior to the filing of any motion, and in compliance with that Local

Rule, Menzies sought to narrow the classes of workers subject

to the motion to those classifications that might be considered a

“close call” and stipulate that seemingly obvious classifications like

office personnel are subject to arbitration. Plaintiffs have refused,

claiming classifications such as recruiters are indispensable to

Menzies’ larger operations and therefore qualify as transportation

workers under Lopez. The delay in bringing the motion to compel

arbitration thus arises from Menzies’ regrettable need to develop

extensive evidence with respect to each of the many dozens of

classifications at issue, which has included in recent weeks days

of depositions and written discovery. It seems inevitable that the

Central District of California in Amaya will have to engage in the

exact types of “mini-trials” against which this Court has cautioned.

28

in the Amaya case are making these exact arguments

against Menzies in current litigation, and Menzies can only

presume others are making similar arguments against

other companies in cases of which Menzies is unaware.

If Lopez remains good law, anyone whose job duties

have some non-incidental bearing on the process of moving

interstate goods will have the ability to clog district courts

with arguments that their work is a “vital component” to

that process. This will almost certainly lead to disparate

results and unnecessary appellate litigation likely to result

in future circuit splits regarding what is sufficiently “vital”

to movement of interstate goods. Amaya and Joyner are

but two early examples of what is sure to continue. The

practical consequence is this: any employer that has some

involvement in the movement of interstate goods will

need to decide between (1) being mired in FAA litigation,

or (2) foregoing an alternative dispute resolution policy.

This dilemma—created by Lopez—violates the spirit of

the FAA.

This Court should thus grant certiorari and reverse to

cure this violation of the FAA and not allow it to persist.

29

CONCLUSION

The Court should step in now and clarify that workers

who do not physically or directly move interstate goods

or even supervise workers who move interstate goods

are not “transportation workers” under the FAA, even

if they somehow play an undefined and amorphous “vital

role” in commerce. The Court should grant the petition

for certiorari and reverse.

Dated this November 26, 2024.

Respectfully submitted,

Kevin Jackson

Foley & Lardner LLP

11988 El Camino Real,

Suite 400

San Diego, CA 92130

John FitzGerald

Foley & Lardner LLP

777 East Wisconsin Avenue

Milwaukee, WI 53202

Christopher Ward

Counsel of Record

Foley & Lardner LLP

555 S. Flower Street,

Suite 3300

Los Angeles, CA 90071

(213) 972-4500

cward@foley.com

Counsel for Petitioners

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED JULY 19, 2024 . . . . . . 1a

APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA,

FILED DECEMBER 9, 2022 . . . . . . . . . . . . . . . . . 17a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

AUGUST 29, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED JULY 19, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-55015

D.C. No. 2:21-cv-07108-DMG-E

DANNY LOPEZ, INDIVIDUALLY, AND

ON BEHALF OF ALL OTHER

AGGRIEVED EMPLOYEES,

Plaintiff-Appellee,

v.

AIRCRAFT SERVICE INTERNATIONAL, INC.,

A CORPORATION; MENZIES AVIATION (USA),

INC., A CORPORATION,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, Chief District Judge, Presiding

Argued and Submitted January 8, 2024

Pasadena, California

Filed July 19, 2024

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Appendix A

Before: Johnnie B. Rawlinson, Michael J. Melloy,* and

Holly A. Thomas, Circuit Judges.

OPINION

RAWLINSON, Circuit Judge:

Aircraft Service International, Inc. and Menzies

Aviation (USA), Inc. (collectively, Menzies) appeal the

district court’s denial of their motion to compel arbitration

in an action brought by Danny Lopez (Lopez), an airline

fuel technician employed by Menzies, alleging that

Menzies violated California’s wage, meal period, and rest

period requirements. Menzies contends that the district

court erred in holding that, as a transportation worker

engaged in foreign or interstate commerce, Lopez was

exempt from the arbitration requirements imposed by

the Federal Arbitration Act (FAA). Menzies asserts

that Lopez’s fueling of airplanes that carried goods in

interstate and foreign commerce was insufficient to

support an exemption under the FAA. We have jurisdiction

pursuant to 9 U.S.C. § 16, and we affirm the district court’s

denial of Menzies’s motion to compel arbitration.

I.

BACKGROUND

Lopez filed a complaint in California Superior Court

“on behalf of himself and all other aggrieved employees”

* The Honorable Michael J. Melloy, United States Circuit

Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting

by designation.

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of Menzies. Lopez alleged that Menzies failed to

provide the meal periods, rest periods, overtime wages,

minimum wages, copies of records, wages earned during

employment, and itemized wage statements required by

California law.

Menzies removed the action to federal court, and

filed a motion to compel arbitration. Menzies maintained

that arbitration of Lopez’s claims was mandated by

the arbitration agreement signed “[i]n connection with

his employment.” Lopez opposed the motion to compel

arbitration.

In addition to challenging the enforceability of the

arbitration agreement, Lopez asserted that he belonged

to a class of transportation workers engaged in foreign or

interstate commerce that is exempt from the provisions

of the FAA requiring arbitration. In a declaration, Lopez

explained that he was employed by Menzies as a field

technician “in the fueling department at Los Angeles

International Airport,” and that he “physically added fuel

to both passenger and cargo airplanes involved in both

foreign and domestic interstate travel.”

The district court denied Menzies’ motion to compel

arbitration. The district court observed that Menzies

did “not contest Lopez’s description of his work, or offer

additional evidence about the nature of that work.” Rather,

Menzies argued that Lopez is not exempt from arbitration

because he “does not handle goods in commerce.” The

district court disagreed. Contrasting Lopez with a truck

mechanic whom another district court had found ineligible

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Appendix A

for the transportation worker exemption, the district court

reasoned that:

[a]lthough an employee who adds fuel to cargo

planes is not literally moving goods (as the

plaintiffs in Saxon1 and Rittmann2 did), he is

closer both physically and temporally to the

actual movement of goods between states than a

truck mechanic who works on trucks that move

goods in interstate commerce.

Relying on the Fifth Circuit’s decision in Wirtz v. B.

B. Saxon Co., 365 F.2d 457 (5th Cir. 1966), the district

court held that, because

the act of fueling cargo planes that carry goods

in interstate commerce is so closely related to

interstate transportation as to be practically

a part of it . . . , Lopez, whose duties included

physically adding fuel to planes, was directly

involved in the transportation itself, not only

the maintenance of the means by which goods

were transported.

As a result, the district court “conclude[d] that Lopez

is exempt from the [arbitration] requirements of the FAA.”

1. Southwest Airlines Co. v. Saxon, 596 U.S. 450, 142 S. Ct.

1783, 213 L. Ed. 2d 27 (2022).

2. Rittmann v. Amazon.com, Inc., 971 F.3d 904, 907 (9th

Cir. 2020).

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Appendix A

Menzies filed a timely notice of appeal.

II. STANDARDS OF REVIEW

“We review a denial of a motion to compel arbitration

de novo and findings of fact underlying the district court’s

decision for clear error.” Bielski v. Coinbase, Inc., 87 F.4th

1003, 1008 (9th Cir. 2023) (citation, alteration, and internal

quotation marks omitted).

III. DISCUSSION

The District Court’s Denial of Menzies’ Motion To

Compel Arbitration

The FAA does not “apply to contracts of employment

of seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce.” 9

U.S.C. § 1; see also Rittmann, 971 F.3d at 909. Menzies

maintains that, under Saxon, Lopez did not belong to a

class of transportation workers engaged in foreign or

interstate commerce because he did not have any handson contact with goods and direct participation in their

interstate movement.

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

109, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001), the Supreme

Court concluded that the FAA exemption was confined

to transportation workers. The Supreme Court opined

that the exemption’s residual clause encompassing “any

other class of workers engaged in [interstate] commerce

. . . should be read to give effect to the terms ‘seamen’

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Appendix A

and ‘railroad employees,’ and should itself be controlled

and defined by reference to the enumerated categories

of workers which are recited just before it.” Id. at 114-15

(alteration omitted). 3 The Supreme Court emphasized

that the statutory phrase “engaged in commerce . . .

means engaged in the flow of interstate commerce, and

was not intended to reach all corporations engaged in

activities subject to the federal commerce power.” Id. at

117 (citations and internal quotation marks omitted). The

Supreme Court also observed that it was “reasonable to

assume 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.

Saxon, decided over twenty years after Circuit City,

involved a ramp supervisor who was “frequently require[d]

. . . to load and unload baggage, airmail, and commercial

cargo on and off airplanes that travel across the country.”

596 U.S. at 453. In Saxon, the Supreme Court further

clarified the exemption for transportation workers,

3. The Supreme Court explained that “the words ‘any other

class of workers engaged in commerce’ constitute a residual

phrase, following, in the same sentence, explicit reference to

‘seamen’ and ‘railroad employees.’” Circuit City, 532 U.S. at 114

(alteration omitted). “Construing the residual phrase to exclude

all employment contracts fails to give independent effect to the

statute’s enumeration of the specific categories of workers which

precedes it; there would be no need for Congress to use the phrases

‘seamen’ and ‘railroad employees’ if those same classes of workers

were subsumed within the meaning of the ‘engaged in commerce’

residual clause. . . .” Id. (alteration omitted).

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Appendix A

explaining that as used in the FAA, “[t]he word ‘workers’

directs the interpreter’s attention to ‘the performance

of work,’” and “the word ‘engaged’—meaning occupied,

employed, or involved—similarly emphasizes the actual

work that the members of the class, as a whole, typically

carry out.” Id. at 456 (citations, alterations, and internal

quotation marks omitted) (emphasis in the original). The

Supreme Court opined that “any class of workers directly

involved in transporting goods across state or international

borders falls within [9 U.S.C.] § 1’s exemption.” Id. at 457.

The Supreme Court, therefore, thought it “plain that

airline employees who physically load and unload cargo

on and off planes traveling in interstate commerce are, as

a practical matter, part of the interstate transportation

of goods.” Id. And the Supreme Court expounded that

any worker qualifying for the exemption “must at least

play a direct and necessary role in the free flow of goods

across borders,” and that “transportation workers must

be actively engaged in transportation of those goods

across borders via the channels of foreign or interstate

commerce.” Id. at 458 (citations and internal quotation

marks omitted).

The Supreme Court concluded that “[c]argo loaders

exhibit this central feature of a transportation worker”

because “one who loads cargo on a plane bound for

interstate transit is intimately involved with the commerce

(e.g., transportation) of that cargo.” Id. Distinguishing

prior cases, the Supreme Court observed:

[u]nlike those who sell asphalt for intrastate

construction or those who clean up after

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Appendix A

corporate employees, our case law makes clear

that airplane cargo loaders plainly do perform

activities within the flow of interstate commerce

when they handle goods traveling in interstate

and foreign commerce, either to load them for

air travel or to unload them when they arrive.

Id. at 462-63 (citation and internal quotation marks

omitted).4

In Rittmann, a case decided prior to Saxon, 5 we

considered whether Amazon’s AmFlex delivery drivers,

4. In Bissonnette v. LePage Bakeries Park St., LLC,

601 U.S. 246, 144 S. Ct. 905, 218 L. Ed. 2d 204 (2024), a case

involving plaintiffs who “worked as distributors” for a “producer

and marketer of baked goods,” id. at 248, the Supreme Court

considered “whether a transportation worker must work for a

company in the transportation industry to be exempt under § 1 of

the FAA.” Id. at 252 (footnote reference omitted). In holding that

“[a] transportation worker need not work in the transportation

industry to fall within the exemption from the FAA provided

by § 1 of the Act,” the Supreme Court “express[d] no opinion on

any alternative grounds in favor of arbitration . . . including that

petitioners are not transportation workers and that petitioners are

not ‘engaged in foreign or interstate commerce’ within the meaning

of § 1 because they deliver baked goods only in Connecticut.”

Id. at 256. Focusing on the work performed, the Supreme Court

reiterated that, under the FAA, “any exempt worker must at least

play a direct and necessary role in the free flow of goods across

borders.” Id. (citation and internal quotation marks omitted); see

also id. at 255 (noting that the “classes of workers” referenced in

the exemption “are connected by what they do”).

5. We have held that there is “no clear conflict between

Rittmann and Saxon.” Carmona v. Domino’s Pizza, LLC, 73

F.4th 1135, 1137 (9th Cir. 2023).

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Appendix A

employed to “make last mile deliveries of products from

Amazon warehouses to the products’ destinations,”

were transportation workers exempt from the FAA’s

enforcement provisions. 971 F.3d at 907 (internal quotation

marks omitted). We noted that, when enacted, the FAA

defined “commerce” as:

Intercourse by way of trade and traffic between

different people or states and the citizens or

inhabitants thereof, including not only the

purchase, sale, and exchange of commodities,

but also the instrumentalities and agencies

by which it is promoted and the means and

appliances by which it is carried on, and the

transportation of persons as well as of goods,

both by land and by sea.

Id. at 910 (citation omitted). We concluded that a worker

was engaged in interstate and foreign commerce when

“her work was so closely related to interstate and foreign

commerce as to be in practical effect part of it.” Id. at

911 (citation, alteration, footnote reference, and internal

quotation marks omitted).

Relying on cases addressing employment in interstate

commerce for purposes of the Federal Employees Liability

Act (FELA), we observed that,

[p]rior to the FAA’s enactment in 1925, the

Supreme Court articulated that the true test of

such employment in such commerce in the sense

intended is, was the employee, at the time of the

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Appendix A

injury, engaged in interstate transportation,

or in work so closely related to it as to be

practically a part of it?

Id. at 912 (citation, alterations, and internal quotation

marks omitted). “In incorporating almost exactly the

same phraseology into the Arbitration Act of 1925 its

draftsmen and the Congress which enacted it must have

had in mind this current construction of the language

which they used.” Id. at 913 (citation omitted).

We further observed that “the Supreme Court has

held that the actual crossing of state lines is not necessary

to be engaged in commerce for purposes of the Clayton

and Robinson-Patman Acts.” Id. (internal quotation marks

omitted).

In a pair of cases decided in the same term, the

Court clarified that Congress’s use of the term

‘engaged in commerce’ was a limited assertion

of its jurisdiction, and denoted only persons

or activities within the f low of interstate

commerce—the practical, economic continuity

in the generation of goods and services for

interstate markets and their transport and

distribution to the consumer. . . .” Id. (citation,

alteration, and some internal quotation marks

omitted). Based on analogous language in other

statutes, we emphasized that “a class of workers

must themselves be engaged in the channels of

foreign or interstate commerce.”

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Appendix A

Id. at 916-17 (citation, footnote reference, and internal

quotation marks omitted) (emphasis in the original).

A fter considering the meaning of “engaged in

commerce” in other statutes, the nature of Amazon’s

business, and the involvement of intrastate delivery

drivers in the channels of interstate commerce, we

determined that Amazon’s AmFlex workers were exempt

from the FAA. We explained that “Amazon hires AmFlex

workers to complete the delivery. AmFlex workers form

a part of the channels of interstate commerce, and are

thus engaged in interstate commerce as we understand

that term.” Id. at 917 (footnote reference omitted). As

a result, “AmFlex delivery providers [fell] within the

exemption, even if they [did] not cross state lines to make

their deliveries.” Id. at 919.

Following the analytical approach applied in Rittmann,

we conclude that a fuel technician who places fuel in an

airplane used for foreign and interstate commerce is a

transportation worker engaged in commerce because a

fuel technician “play[s] a direct and necessary role in the

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

(citation and internal quotation marks omitted). Lopez’s

fueling of the airplane—a vital component of its ability

to engage in the interstate and foreign transportation

of goods—is “so closely related to interstate and foreign

commerce as to be in practical effect part of it.” Rittmann,

971 F.3d at 911 (citation and alteration omitted). Thus,

Lopez was engaged “in the channels of foreign or

interstate commerce” for purposes of the FAA exemption.

Id. at 916-17 (citation, footnote reference, and internal

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Appendix A

quotation marks omitted) (emphasis in the original); see

also Ortiz v. Randstad Inhouse Servs., LLC, 95 F.4th

1152, 1161-62 (9th Cir. 2024) (concluding that workers

whose “job duties included exclusively warehouse work”

were transportation workers because they “fulfilled an

admittedly small but nevertheless direct and necessary

role in the interstate commerce of goods”) (internal

quotation marks omitted).6

The Supreme Court did not impose a requirement

in Saxon that the worker must have hands-on contact

with goods and cargo or be directly involved in the

transportation of the goods. Instead, the Supreme Court

recognized that workers may be exempt from the FAA

6. Amicus Airlines For America asserts that the district

court’s decision “creat[ed] significant line-drawing problems and

undermine[d] the FAA’s proarbitration purpose.” However:

line-drawing is a product of Circuit City itself.

In concluding that the residual clause does not

encompass all employment contracts, but only those

of transportation workers, the Court left it to the

lower courts to assess which workers fall within that

category. Doing so unavoidably requires the linedrawing that courts often do.

Rittmann, 971 F.3d at 918 (citation and internal quotation marks

omitted). “If that line-drawing proves to be unmanageable, it is up

to Congress, not jurists, to revise the statute. Congress did so with

FELA, and we have no reason to believe it cannot do so here. . . .”

Id. (citation and footnote reference omitted). Additionally, “[n]othing

in Circuit City requires that we rely on the pro-arbitration

purpose reflected in [9 U.S.C.] § 2 to even further limit the already

narrow definition of the phrase ‘engaged in commerce.’” Id. at 914

(emphasis in the original).

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Appendix A

even “when the class of workers carries out duties further

removed from the channels of interstate commerce or

the actual crossing of borders.” 596 U.S. at 457 n.2.7 The

Supreme Court declined to address situations beyond the

facts involved in Saxon, and did not otherwise mandate

that a worker must have hands-on involvement with the

goods themselves to qualify as a transportation worker

involved in interstate commerce. See id.

Menzies and Amicus also fault the district court for

relying on non-FAA cases addressing FELA and the Fair

Labor Standards Act (FLSA). However, in Rittmann, we

relied on FELA cases, as well as Supreme Court cases

discussing the Clayton and Robinson-Patman Acts, to

resolve the FAA exemption issue. See 971 F.3d at 912-13

& n.2. In doing so, we emphasized that there has been a

“longstanding reliance on [FELA] to interpret the FAA’s

text, dating back to the 1950s.” Id. at 918 n.9 (citations

omitted). The First Circuit, for example, referenced

FELA to interpret the FA A’s interstate commerce

exemption, observing,

In numerous cases, the Supreme Cour t

considered when a railroad employee was

engaged in interstate commerce, such that

the FELA provided coverage for injuries

sustained on the job. Whether a worker had

7. Notably, the Supreme Court cited, without criticizing, our

decision in Rittmann as exemplifying “a class of workers” whose

duties were “further removed from the channels of interstate

commerce or the actual crossing of borders.” Saxon, 596 U.S. at

457 n.2.

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Appendix A

moved across state lines was not dispositive.

Rather, the Court concluded that workers

engaged in interstate commerce did not refer

only to those workers who themselves carried

goods across state lines, but also included at

least two other categories of people: (1) those

who transported goods or passengers that

were moving interstate, and (2) those who were

not involved in transport themselves but were

in positions so closely related to interstate

transportation as to be practically a part of it.

Waithaka v. Amazon.com, Inc., 966 F.3d 10, 19-20 (1st Cir.

2020) (citations and internal quotation marks omitted).

The First Circuit also noted that the Supreme Court has

referenced the federal arson statute, the Clayton Act, the

Robinson-Patman Act, and the Federal Trade Commission

Act in interpreting sections 1 and 2 of the FAA. See id.

at 16-17.

Under the analytical framework used in Supreme

Court cases and in our precedent interpreting similar

statutes, there is historical support for the district court’s

determination that fuel technicians are transportation

workers engaged in commerce. In Wirtz, for example,

the Fifth Circuit held that, under the FLSA, “[t]here can

be no question that the employees who hauled airplane

fuel to the planes were engaged in commerce within the

statute and the applicable judicial precedents.” 365 F.2d

at 460-61 (citation omitted). And in Shanks v. Delaware,

Lackwanna, & W. Railroad Co., 239 U.S. 556, 36 S. Ct.

188, 60 L. Ed. 436 (1916), the Supreme Court similarly

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Appendix A

recognized that, under FELA, “the requisite employment

in interstate commerce exists . . . where a fireman is

walking ahead of and piloting through several switches a

locomotive which is to be attached to an interstate train

and to assist in moving the same up a grade.” Id. at 55859 (citation omitted); see also North Carolina R.R. Co. v.

Zachary, 232 U.S. 248, 259-60, 34 S. Ct. 305, 58 L. Ed.

591 (1914) (holding that a fireman’s “acts in inspecting,

oiling, firing, and preparing his engine for [a] trip . . .

were acts performed as a part of interstate commerce

and the circumstance that the interstate freight cars had

not as yet been coupled up [was] legally insignificant”).

Although these cases are not dispositive in determining

if fuel technicians are transportation workers engaged

in commerce, their reasoning militates against Menzies’s

contentions that a transportation worker is limited to

those employees who have hands-on contact with goods

and direct involvement with the transportation of the

goods.

Contrary to Menzies’s argument, the district court

faithfully applied Saxon’s analytical framework, our

precedent as set forth in Rittmann, and the guidance from

cases involving similar statutory language. We agree with

the district court that Lopez, as a transportation worker

engaged in intestate or foreign commerce, was exempt

from the arbitration requirements imposed by the FAA.

See Rittmann, 971 F.3d at 919.

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Appendix A

IV. CONCLUSION

In Saxon, the Supreme Court did not hold that only

workers who had hands-on contact with goods bound for

transportation in interstate or foreign commerce qualify

for the FA A exemption for transportation workers.

Instead, the Supreme Court opined that “the answer will

not always be . . . plain when the class of workers carries

out duties further removed from the channels of interstate

commerce or the actual crossing of borders.” Saxon, 596

U.S. at 457 n.2. Applying Saxon and our precedent as set

forth in Rittmann, we conclude that Lopez, working as a

technician fueling airplanes carrying goods in interstate

and foreign commerce, qualifies as a transportation

worker for purposes of the exemption from the FAA’s

arbitration requirements.

AFFIRMED.

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Appendix

B

APPENDIX B — OPINION

OF THE

UNITED STATES

DISTRICT COURT FOR THE CENTRAL DISTRICT

OF CALIFORNIA, FILED DECEMBER 9, 2022

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

CV 21-7108-DMG (Ex)

DANNY LOPEZ,

v.

AIRCRAFT SERVICE INTERNATIONAL, INC., et al.

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE.

December 9, 2022, Decided; December 9, 2022, Filed

Proceedings: IN CHAMBERS—ORDER DENYING

DEFENDANTS’ MOTION TO COMPEL

ARBITRATION [29]

On July 21, 2021, Plaintiff Danny Lopez filed a

Complaint in Los Angeles County Superior Court

against Defendants Aircraft Service International, Inc.

and Menzies Aviation (USA), Inc., asserting a single

claim under California’s Private Attorneys General Act

(“PAGA”) for wage and hour violations. Compl. [Doc. #

1-2.]1 On September 2, 2021, Defendants removed the

1. Plaintiff also named “Air Menzies International (USA),

Inc.” as a defendant. Defendants maintain that this entity does

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Appendix B

action to this Court, invoking federal question jurisdiction

on the basis that portions of Lopez’s claim are completely

preempted by the Railway Labor Act, 45 U.S.C. § 151 et

seq. See Notice of Removal ¶¶ 5-25.

On April 7, 2022, the Court denied Defendants’ motion

to stay this action pending the decision of the United

States Supreme Court in Viking River Cruises, Inc. v.

Moriana, 142 S. Ct. 1906, 213 L. Ed. 2d 179 (2022), because

Defendants had not shown that the Moriana decision

would have any impact on this case. [Doc. # 28.] The

Moriana ruling issued on June 15, 2022. Defendants now

move to compel arbitration of Lopez’s claims. [Doc. # 29.]

The motion to compel (“MTC”) is fully briefed. [Doc. ##

34 (“Opp.”), 36 (“Reply”).] Having carefully considered the

parties’ written arguments, the Court DENIES the MTC.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Lopez worked for Menzies as a field technician in the

fueling department at Los Angeles International Airport

(“LAX”) from approximately December 2007 to April

2021. Lopez Decl. ¶ 3 [Doc. # 34-1]; see also Bazerkanian

Decl. ¶ 4 [Doc. # 29-2]. His job included physically adding

fuel to passenger and cargo airplanes involved in both

foreign and domestic interstate travel. Lopez Decl. ¶ 3.

not exist. Plaintiff does not appear to contest this, so for purposes

of this motion, the Court disregards this defendant.

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Appendix B

Menzies has an Alternative Dispute Resolution

(“ADR”) Policy that covers “all disputes arising” between

signing employees and Menzies, and refers such disputes

to binding arbitration. Bazerkanian Decl., Ex. A [Doc. #

29-2]. The ADR Policy also prohibits employees “from

joining or participating in a class action or as a collective

action representative, or otherwise consolidating a

covered claim with the claims of others.” Id. at 6. Menzies

contends that Lopez consented to the ADR Policy on June

28, 2019. Bazerkanian Decl. ¶ 4.

II.

LEGAL STANDARD

The Federal Arbitration Act (“FAA”) provides that

written arbitration agreements are “valid, irrevocable,

and enforceable, save upon such grounds as exist at law

or in equity for the revocation of any contract.” AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 336, 131

S. Ct. 1740, 179 L. Ed. 2d 742 (2011). “The basic role for

courts under the FAA is to determine ‘(1) whether a valid

agreement to arbitrate exists and, if it does, (2) whether

the agreement encompasses the dispute at issue.’” Kilgore

v. KeyBank Nat’l Ass’n, 718 F.3d 1052, 1058 (9th Cir. 2013)

(en banc) (quoting Chiron Corp. v. Ortho Diagnostic Sys.,

Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)).

Federal substantive law governs questions concerning

the interpretation and enforceability of arbitration

agreements. Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 22-24, 103 S. Ct. 927, 74 L. Ed. 2d

765 (1983). Courts apply ordinary state law contract

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Appendix B

principles, however, “[w]hen deciding whether the parties

agreed to arbitrate a certain matter.” First Options of

Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 131

L. Ed. 2d 985 (1995). If an arbitration clause is not itself

invalid under “generally applicable contract defenses, such

as fraud, duress, or unconscionability,” it must be enforced

according to its terms. Concepcion, 563 U.S. at 339. In

adjudicating whether parties have agreed to arbitrate,

“district courts rely on the summary judgment standard of

Rule 56 of the Federal Rules of Civil Procedure.” Hansen

v. LMB Mortg. Servs., Inc., 1 F.4th 667, 670 (9th Cir. 2021).

III.

DISCUSSION

Defendants seek to compel arbitration of Lopez’s

PAGA claim. Lopez argues the motion should be denied

because Lopez is exempt from the FAA pursuant to

another recent Supreme Court decision, Southwest

Airlines Co. v. Saxon, 142 S. Ct. 1783, 213 L. Ed. 2d 27

(2022). 2

A. Exemption Pursuant to Saxon

Lopez contends that, because he works in the fueling

department of Menzies at LAX and routinely adds fuel

to airplanes in interstate commerce, he is engaged in

interstate commerce and thus is exempt from the FAA’s

requirements.

2. Lopez also raises a number of other arguments. Because

the Court concludes that the FAA does not apply under Saxon,

the Court need not address these other arguments.

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Appendix B

Section 1 of the FAA exempts “contracts of employment

of seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce”

from the Act’s requirements. 9 U.S.C. § 1. In Saxon, the

United States Supreme Court concluded that an airline

employee who frequently loaded and unloaded cargo on

airplanes was engaged in interstate commerce, and thus

was exempt from the FAA. 142 S. Ct. at 1793. The Court

declined to create a blanket rule that all airline employees

were engaged in interstate commerce. See 142 S. Ct. at

1791. Still, the Court refused to limit the exemption to only

those airline transportation workers who actually “ride

aboard an airplane in interstate or foreign transit.” Id.

Instead, the Court held that the exception applies to “any

class of workers directly involved in transporting goods

across state or international borders.” Id. at 1789. The

Court focused its attention on the actual work performed

by the employee in question. Id. at 1788.

Defendants do not contest Lopez’s description of his

work, or offer additional evidence about the nature of that

work. Instead, they contend that Section 1 does not cover

Lopez’s work because Lopez does not handle goods in

commerce. As the Court recognized in Saxon, the question

of whether an employee works in interstate commerce may

be difficult to answer “when the class of workers carries

out duties further removed from the channels of interstate

commerce or the actual crossing of borders.” 142 S. Ct. at

1789 n.2 (citing Rittmann v. Amazon.com, Inc., 971 F.3d

904, 916 (9th Cir. 2020), cert. denied, 141 S. Ct. 1374, 209

L. Ed. 2d 121 (2021)). For example, the Ninth Circuit has

held that “last leg” delivery drivers fell within Section 1

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Appendix B

and were therefore exempt from the FAA, even though

these drivers undisputedly did not actually move goods

between states. See Rittmann, 971 F.3d at 916. On the

other hand, another court in this District, applying Saxon,

has concluded that a truck mechanic was not exempt from

the FAA because, even though his employer was “directly

engaged in interstate commerce,” the mechanic himself

was only “perceptibly connected to the instrumentalities

of commerce.” Holley-Gallegly v. Ta Operating LLC,

No. ED CV 22-593-JGB (SHKx), 2022 U.S. Dist. LEXIS

192765, 2022 WL 9959778, at *2-3 (C.D. Cal. Sept. 16,

2022) (quoting Saxon, 142 S. Ct. at 1791).

Although an employee who adds fuel to cargo planes

is not literally moving goods (as the plaintiffs in Saxon

and Rittmann did), he is closer both physically and

temporally to the actual movement of goods between

states than a truck mechanic who works on trucks that

move goods in interstate commerce (as was the case in

Holley-Gallegly). The Fifth Circuit has held “there can

be no question” that employees who hauled fuel to planes

that transported goods in interstate commerce were

“engaged in commerce” for purposes of the Fair Labor

Standards Act because their activities were “so closely

related to [ . . . ] commerce as to be in practice and in legal

contemplation a part of it.” See Wirtz v. B. B. Saxon Co.,

365 F.2d 457, 461 (5th Cir. 1966). By contrast, the court

held that employees who provided janitorial services in

buildings that housed instrumentalities of commerce were

not engaged in commerce. Id. at 462.

23a

Appendix B

Applying similar logic as Wirtz, this Court concludes

that the act of fueling cargo planes that carry goods in

interstate commerce is “so closely related to interstate

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

Saxon, 142 S. Ct. at 1789. Lopez, whose duties included

physically adding fuel to planes, was directly involved

in the transportation itself, not only the maintenance

of the means by which goods were transported. The

Court therefore concludes that Lopez is exempt from the

requirements of the FAA pursuant to section 1.

IV.

CONCLUSION

In light of the foregoing, the Court DENIES

Defendants’ MTC.

IT IS SO ORDERED.

24a

Appendix

C UNITED STATES

APPENDIX C — ORDER

OF THE

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED AUGUST 29, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-55015

D.C. No. 2:21-cv-07108-DMG-E

Central District of California, Los Angeles

DANNY LOPEZ, INDIVIDUALLY, AND

ON BEHALF OF ALL OTHER

AGGRIEVED EMPLOYEES,

Plaintiff-Appellee,

v.

AIRCRAFT SERVICE INTERNATIONAL, INC.,

A CORPORATION; MENZIES AVIATION (USA),

INC., A CORPORATION,

Defendants-Appellants.

Filed August 29, 2024

ORDER

Before: RAWLINSON, MELLOY,* and H.A. THOMAS,

Circuit Judges.

* The Honorable Michael J. Melloy, United States Circuit

Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting

by designation.

25a

Appendix C

Judges Rawlinson and Thomas voted to deny, and

Judge Melloy recommended denying, the Petition for

Rehearing En Banc.

The full court has been advised of the Petition

for Rehearing En Banc, and no judge of the court has

requested a vote.

The Petition for Rehearing En Banc, filed August 1,

2024, is DENIED.