Amicus Curiae Brief — Flowers Foods, Inc., et al., Petitioners v. Angelo Brock

No. 24-935

In the

Supreme Court of the United States

FLOWER FOODS, INC., et al.,

Petitioners,

v.

ANGELO BROCK,

Respondent.

On Writ of Certiorari to the

United States Court of A ppeals for the Tenth Circuit

BRIEF OF MENZIES AVIATION, INC.

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Christopher Ward

Counsel of Record

Foley & Lardner LLP

555 South Flower Street, Suite 3300

Los Angeles, CA 90071

(213) 972-4500

cward@foley.com

John FitzGerald

Foley & Lardner LLP

777 East Wisconsin Avenue

Milwaukee, WI 53202

Counsel for Amicus Curiae

Menzies Aviation, Inc.

December 11, 2025

388412

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTEREST OF THE AMICUS CURIAE . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.

THIS COURT H A S REPEATEDLY

DIRECTED TH AT LOW ER

C OU R T S M U S T A P P LY T H E

T R A NSPORTAT ION WORK ER

EXEMPTION NARROWLY ACROSS

ALL ITS ASPECTS, NOT MERELY

ITS “INTERSTATE/INTRASTATE”

ELEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. LOWER COURTS WILL CONTINUE

M I S A P P LY I NG S A XON A N D

EXPANDING WHAT IT MEANS TO

ENGAGE IN “ TRANSPORTATION”

IF THIS COURT OPTS TO CONFINE

ITS DISCUSSION TO “INTERSTATE”ONLY CONSIDERATIONS . . . . . . . . . . . . . . 10

A. In The Wake Of Saxon, Courts Are

Inventing Amorphous “Bigger Picture”

Tests With Expansive Application As

To What “Active Engagement” And

“Direct And Necessary Involvement”

In Transportation Means . . . . . . . . . . . . . . 11

ii

Table of Contents

Page

B. Residual Clause Litigation Will

Continue Burdening Lower Courts,

And They Will Continue Expanding

Saxon’s Precise Language, Without

Comprehensive Reiteration By This

Court Of What It Means To Be A

“Transportation Worker” . . . . . . . . . . . . . . 17

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

iii

TABLE OF CITED AUTHORITIES

Page

Cases

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

No. 22-CV-05915-HDV-MAR, 2025 WL 947132

(C.D. Cal. Mar. 24, 2025) . . . . . . . . . . . . . . . . . . 3, 13-16

Berdugo v. Lululemon USA Inc et al.,

No. 5:25-CV-02252-SSS-DTBX, 2025 WL 3312944

(C.D. Cal. Oct. 30, 2025) . . . . . . . . . . . . . . . . . . . . . . . 12

Bissonnette v. LePage Bakeries Park St., LLC,

601 U.S. 246 (2024) . . . . . . . . 2, 4, 5, 8, 9, 11, 13, 16-20

Carr v. Traffic Mgmt., Inc., No.

24-CV-01333 HDV JCX, 2024 WL 4329070

(C.D. Cal. Aug. 13, 2024) . . . . . . . . . . . . . . . . . . . . . . . 17

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) . . . . . . . . 2, 5, 7, 9, 11, 13, 17, 19, 20

Fraga v. Premium Retail Servs. Inc.,

61 F.4th 228 (1st Cir. 2023) . . . . . . . . . . . . . . . . . . . . . . 8

Fraga v. Premium Retail Servs., Inc.,

704 F. Supp. 3d 289 (D. Mass. 2023) . . . . . . . . . . . . . 17

Jennings v. Ed Napleton Elmhurst Imports, Inc.,

No. 1:23-cv-14099, 2025 WL 461433

(N.D. Ill. Feb. 11, 2025) . . . . . . . . . . . . . . . . . . . . . . . 17

iv

Cited Authorities

Page

Joyner v. Frontier Airlines, Inc.,

No. 24-CV-01672-SKC-TPO, 2025 WL 1503141

(D. Colo. May 19, 2025) . . . . . . . . . . . . . . . . . . . . 3, 14-16

London v. A-1 Quality Logistical Sols., LLC,

No. 23-CV-107, 2024 WL 4266359

(S.D. Ohio Sept. 23, 2024) . . . . . . . . . . . . . . . . . . . . . . 17

Lopez v. Aircraft Serv. Int’l, Inc.,

107 F.4th 1096 (9th Cir. 2024),

cert. denied, 145 S. Ct. 1063 (2025) . . . . . . . . . . 3, 13-15

Lopez v. Aircraft Serv. Int’l, Inc.,

No. CV 21-7108-DMG (Ex), 2022 WL 18232726

(C.D. Cal. Dec. 9, 2022) . . . . . . . . . . . . . . . . . . . . . . 3, 12

Ortiz v. Randstad Inhouse Servs., LLC,

95 F.4th 1152 (9th Cir. 2024) . . . . . . . . . . . . . 11, 12, 14

Rittmann v. Amazon.com, Inc.,

971 F.3d 904 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . 3, 18

Saks v. DSV Air & Sea, Inc.,

No. 8:25-CV-01696-FWS-ADS, 2025 WL 2995150

(C.D. Cal. Oct. 10, 2025) . . . . . . . . . . . . . . . . . . . . . . . 17

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) . . . . . . . . . . . . . . . . 2-5, 7-13, 16-20

v

Cited Authorities

Page

Waithaka v. Amazon.com, Inc.,

966 F.3d 10 (1st Cir. 2020) . . . . . . . . . . . . . . . . . . . . . 18

Wolford v. United Coal Co., LLC,

164 F. Supp. 3d 329 (W.D. Va. 2025) . . . . . . . . . . . . . 17

Statutes

Federal Arbitration Act . . . . . . . . 2-8, 10, 13, 15, 17-19, 21

Other Authorities

Merriam-Webster

https://www.merriam-webster.com/dictionary/

physically (last visited December 8, 2025) . . . . . . . . . 8

https://www.merriam-webster.com/dictionary/

directly (last visited December 8, 2025) . . . . . . . . . . 8

1

INTEREST OF THE AMICUS CURIAE1

Menzies Aviation, Inc. is the privately-held corporate

US parent of the Menzies Aviation enterprise, an airline

service provider supplying ground handling support to

passenger and commercial cargo airlines throughout

the United States. The enterprise services its airline

customers through five operating subsidiaries, each

focused on a distinct aspect of ground handling:

• Menzies Aviation (USA), Inc., which performs: (i) interminal services such as customer service support

with passenger ticketing, check-in, boarding and

deplaning; and (2) ramp services such as aircraft

marshaling, baggage loading and unloading,

interior aircraft cabin cleaning between flights,

lavatory cleaning, and other related services;

• Simplicity Ground Services, LLC, which provides

services similar to Menzies Aviation (USA), Inc.

but primarily at regional airports throughout the

interior of the United States;

• Aeroground, Inc., which operates within airlines’

cargo warehouses at major international freight

airports performing cargo security screening,

assembly, inventory, and break-down services;

1. No counsel for a party authored this brief in whole or in part,

and no party or counsel other than amicus curiae and its counsel

made a monetary contribution to fund preparation or submission of

this brief.

2

• Aircraft Service International, Inc., which (i)

operates and maintains airline-owned fuel storage

and processing facilities and airport underground

hydrant infrastructure; and (ii) performs into-plane

fuel pumping using (a) an airport’s hydrant systems

and gate-based fuel carts, and/or (b) a fleet of tanker

vehicles; and

• Menzies Aviation (Airport Services), Inc., which

primarily provides in-terminal wheelchair services

for passengers needing additional assistance

moving through airport terminals and boarding

and deplaning from aircraft.

Several of these entities employ teams of mechanics to

maintain the machinery necessary to perform operations

such as forklifts, belt loaders, push-backs, baggage carts,

fueling trucks and related equipment. They also employ

teams to provide training and perform safety functions,

and office-based personnel to perform functions such as

dispatch, paperwork (such as bills of lading and fueling

load reconciliation), recruiting, human resources, finance,

and other administrative support work.

Petitioners correctly articulate that lower courts have

applied the Federal Arbitration Act’s § 1 “transportation

worker” exemption expansively notwithstanding this

Court’s instruction in Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) that it requires narrow application

and the precise, work-focused guidance of Southwest

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

v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024).

As Petitioners note, lower courts are adopting various

“judge-made, nonexclusive, multi-factor balancing test[s]”

3

and examining “a dizzying and ever-expanding array of

considerations to assess whether § 1 applies,” undermining

the FAA’s goals and fostering litigation from a statute

that seeks to avoid it. Pet. Br. 3, 14. This is resulting in

expansive, scattershot application of the residual clause

based on each court’s “own selection of factors [the court]

deems relevant.” Rittmann v. Amazon.com, Inc., 971 F.3d

904, 931 (9th Cir. 2020) (Bress, J., dissenting).

Like Petitioners, the Menzies Aviation enterprise

has been directly impacted by lower courts’ inconsistent

application and expansion of the transportation worker

exemption following Saxon. Three district courts and

the Ninth Circuit have each invented their own analytical

tests to apply the transportation worker exemption to

classes of workers that do not transport goods at all but

have some place within the “bigger picture” of interstate

transportation. See Lopez v. Aircraft Serv. Int’l, Inc.,

107 F.4th 1096 (9th Cir. 2024) (applying the exemption to

workers who do not transport goods nor cross borders

but are a “vital component” to the larger transportation

process), cert. denied, 145 S. Ct. 1063 (2025); Joyner

v. Frontier Airlines, Inc., No. 24-CV-01672-SKC-TPO,

2025 WL 1503141 (D. Colo. May 19, 2025) (applying the

exemption to customer service personnel who act as

“gatekeepers” to passengers transporting their own

baggage); Amaya v. Menzies Aviation (USA), Inc., No.

22-CV-05915-HDV-MAR, 2025 WL 947132 (C.D. Cal. Mar.

24, 2025) (applying the exemption to every class of workers

within lines of business without regard for each position’s

work); Lopez v. Aircraft Serv. Int’l, Inc., No. CV 21-7108DMG (Ex), 2022 WL 18232726 (C.D. Cal. Dec. 9, 2022)

(applying the exemption to aircraft fuelers because they

work in close proximity “both physically and temporally

to the actual movement of goods”).

4

While Petitioners have correctly identified that lower

courts are running afoul of this Court’s precedents by

inventing their own analyses, the Question Presented

leaves open substantial risk that lower courts will continue

in these errors if this Court’s resolution of this case does

not address the full scope of the post-Saxon jurisprudence

vis-à-vis the exemption. By asking whether workers “who

do not transport the goods across borders nor interact

with vehicles that cross borders” are transportation

workers, Pet. Br. i (emphasis supplied), Petitioners have

identified how lower courts are also erring with respect

to the larger issue of what it means under Saxon to

“directly,” “physically,” and “actually” engage in the

transportation of interstate goods as opposed to only

impacting the larger process of interstate transportation.

This notion of “interacting with vehicles” as entrée to

residual clause application is broader than what Saxon’s

precise language and Bissonnette’s clear rejection of

an industry-based approach permit, and it is important

this Court address the errors of lower courts across the

entirety of the exemption, not merely with respect to its

geographic aspects.

Menzies Aviation and thousands of other businesses

connected to the process and channels of interstate

transportation, as well as the myriad classes of workers

they employ, thus have a substantial interest in how

this Court revisits and gives guidance on the residual

clause where Petitioners have shown lower courts are

not giving it a narrow construction, resulting in more,

not less, FAA litigation. While analyzing § 1 within an

“interstate/intrastate” context, how the Court considers

the arguments and renders its opinion is a much-needed

opportunity to curtail the misapplication of Saxon and rein

5

in lower courts’ expansion of the narrow transportation

worker exemption across all its aspects, not merely within

the interstate/intrastate dichotomy.

SUMMARY OF THE ARGUMENT

Across three consistent opinions in Circuit City,

Saxon and Bissonnette, this Court has made clear that

the “transportation worker” exemption set forth in FAA

§ 1’s residual clause demands narrow application, and in

Saxon, the Court seemingly established an easy-to-apply

analytical framework through clear, precise, and limiting

language. In plain terms, courts only look at what the

class of workers at issue actually does without regard to

employer industry or other contextual factors, and unless

those workers are “actively engaged” through “direct and

necessary involvement” by “physically” and “frequently”

moving goods interstate, they are not transportation

workers and FAA § 2’s expansive reach applies.

Petitioners persuasively demonstrate how, notwithstanding

this Court’s clear precedents, many lower courts are giving

impermissibly broad interpretations to the residual clause’s

“foreign or interstate commerce” language to apply the

exemption beyond its narrow contours. In so doing, they

are creating rules looking at “transactions” and the “big

picture” of interstate transportation. But the errors

some lower courts have recently committed go beyond an

“interstate/intrastate” dichotomy, reaching to the broader

question of what it means to be a “transportation worker”

irrespective of the worker’s geographic movements.

Lower courts are muddying the waters and applying

the exemption to classes of workers who never transport

anything through a channel of interstate commerce but

6

impact the process of transportation using imprecise and

subjective concepts like (i) working in close physical and

temporal proximity to transportation, (ii) performing

work that is a “vital component” of a vehicle’s ability to

move interstate, or (iii) acting in a “gatekeeper function”

to others’ interstate movement of their belongings.

Such nebulous “bigger picture” approaches, if left

unchecked, threaten not merely inconsistent results across

jurisdictions, but still more residual clause litigation that

has necessitated this Court’s attention now three times

in six years.

If the Court resolves this case only by addressing the

“interstate/intrastate” ways in which lower courts are

misapplying § 1, or if the Court leaves open the notion of

“interacting with vehicles” as an entrée to residual clause

application, the tide of litigation will continue rising and

still more subjective and dissonant lower court rules will

emerge. This Court should therefore reverse the judgment

of the Tenth Circuit, but in so doing, it should once and

for all reiterate to lower courts what it means to be a

“transportation worker” in a way that addresses both the

worker’s geographic movements and what their work must

be irrespective of such movement. Transportation workers

are only those classes of workers whose jobs require

them to actively and directly move goods or passengers

cross-border as measured by: (i) themselves frequently

transporting passengers or goods on interstate vehicles

across a border; (ii) frequently loading goods onto vehicles

that will cross a border as part of the most immediate next

part of their journey; and/or (iii) frequently unloading

goods from vehicles that have crossed a border as part

of the most recent part of their journey. If the work

performed by the class of workers at issue is anything

7

less than this practical and unambiguous articulation of

what Saxon says, then FAA § 2 applies.

ARGUMENT

I.

THIS COURT HAS REPEATEDLY DIRECTED

THAT LOWER COURTS MUST APPLY THE

TRANSPORTATION WORKER EXEMPTION

NARROWLY ACROSS ALL ITS ASPECTS, NOT

MERELY ITS “INTERSTATE/INTRASTATE”

ELEMENTS

In Circuit City, this Court emphasized that the FAA’s

statutory language “compel[s] that the § 1 exclusion be

afforded a narrow construction” and thus only covers

“transportation workers.” 532 U.S. at 118-19. In this

first interpretation of the residual clause, Circuit City

thus makes plain that § 1 demands that courts take a

non-expansive approach to application of the exemption,

confining it only to those who qualify, under a narrow

understanding, as “transportation workers.” Id.

Several terms ago, this Court established how courts

must determine who qualifies as a “transportation

worker” pursuant to Circuit City’s requirement of narrow

construction of the residual clause. In Saxon, the Court

set forth the following two-step, multi-factor framework:

a court must (i) first determine the “class of workers”

at issue, and then (ii) determine whether that class of

workers is “engaged in foreign or interstate commerce”

under the FAA. 596 U.S. at 455-56. As to the first step,

the “class of workers is defined by the ‘actual work’” that

workers typically do on the job, “not what [the employer]

does generally.” Id. Though this sentence from Saxon

8

seemingly makes plain that an industry-based analysis is

incorrect, in Bissonnette, this Court explicitly reiterated

that point and instructed that courts must consider what

the relevant class of workers does in isolation to their

work, and not in the context of their industry or any other

ancillary connection to the direct, actual and physical act

of transporting goods interstate. 601 U.S. at 251.

Once a court defines the class of workers based on their

actual work, it applies the § 1 exemption only if the workers

are “directly involved in transporting goods across state or

international borders” such that the work is “as a practical

matter, part of the interstate transportation of goods.”

Saxon, 596 U.S. at 457-58. To explain what this means,

Saxon repeatedly invokes precise and plain language,

speaking to a class of worker’s “direct and necessary

involvement,” and the worker’s “physically loading and

unloading” and “active engagement” in the transportation

of goods in interstate commerce – all of which are actions

the class of workers performs “frequently.” Id. at 456-58

(emphasis supplied); see also Fraga v. Premium Retail

Servs. Inc., 61 F.4th 228, 237 (1st Cir. 2023) (recognizing

the Saxon analysis contains a frequency component). Such

language – and in particular Saxon’s use of the terms

“direct” and “physical” 2 to contextualize what “active

engagement” means – as a practical matter indicates

that the class of workers must themselves carry, convey

or otherwise physically move the goods with immediate

connection to a border crossing, and not merely have

2. Merriam-Webster defines “physically” to mean “in respect

to the body.” See https://www.merriam-webster.com/dictionary/

physically (last visited December 8, 2025). It defines “directly” to

mean “in immediate physical contact.” See https://www.merriamwebster.com/dictionary/directly (last visited December 8, 2025).

9

some involvement in or impact on the larger process of

interstate movement of goods or ancillary connection

to the channels of interstate commerce. This is the only

proper way to understand Saxon and Bissonnette within

the context of Circuit City’s mandate that courts construe

and apply the transportation worker exemption narrowly.

As Petitioners aptly put it, Saxon’s “active engagement”

standard “thus requires the worker to actively and

personally ‘take a part’ in the movement of goods across

borders.” Pet. Br. 17-18.

Read together and properly synthesized, Circuit City,

Saxon and Bissonette should make it a straight-forward

exercise for lower courts to analyze and determine

application of the transportation worker exemption. Yet

notwithstanding Saxon’s practical and precise language,

many lower courts are not applying it correctly. Instead,

as Petitioners have observed, in the post-Saxon world

the transportation worker analysis “has become awash in

judge-made factors.” Pet. Br. 40. Menzies Aviation agrees

with Petitioners that this Court must curtail lower courts’

use of such factors to apply the transportation worker

exemption to classes of workers whose work is simply

not “interstate” in character under a logical and narrow

understanding.

At the same time, the notion within the Question

Presented of “interacting with vehicles” as entrée

to residual clause application would still leave wide

open the problem of “judge-made” factors when the

question confronting a class of workers is not their

geographic movements, but whether they are engaged

in “transportation” at all versus having some looser

impact on the process of transportation. As examples,

10

mechanics, car wash and gas station attendants, and

toll plaza workers all “interact” with interstate vehicles,

yet under any rationale application of Saxon, they are

not transportation workers. An “interact with vehicles”

element as a hook for § 1 application would also leave open

the door for inconsistent determinations and analyses as

to how to assess what it means to “interact” with a vehicle

and what is the requisite level of such “interaction.” If the

volume of residual clause litigation is to decrease through

comprehensively addressing lower courts’ deviation from

Saxon across all aspects of the transportation worker

exemption, answering the Question Presented calls for

not only resolving the “interstate/intrastate” dichotomy

but also addressing the larger “transportation” aspects

of the analysis.

II. L O W E R C O U R T S W I L L C O N T I N U E

MISAPPLYING SAXON AND EXPANDING WHAT

IT MEANS TO ENGAGE IN “TRANSPORTATION”

IF THIS COURT OPTS TO CONFINE ITS

DI S C U S SION T O “ I N T ER STAT E ”- ON LY

CONSIDERATIONS

With respect to the interstate/intrastate dichotomy,

Petitioners have noted that this Court “need only observe

what is happening in the Circuits that have not enforced

§ 1’s narrow reach.” Pet. Br. 43. Many businesses can

say the same with respect to the “transportation” aspect

of the exemption, and perhaps none more so than the

Menzies Aviation enterprise, which has already had four

different lower courts apply the § 1 exemption to classes

of workers that do not transport anything. Each of these

courts have invented analytical tests that depart from

Saxon’s plain language and give expansive construction

11

to and application of the transportation worker exemption

in violation of Circuit City’s mandate. In some examples,

the courts have applied the exemption merely because of

the nature of operational department the class of workers

sits within, and not what their work actually is.

A.

In The Wake Of Saxon, Courts Are Inventing

Amorphous “Bigger Picture” Tests With

Expansive Application As To What “Active

Engagement” And “Direct And Necessary

Involvement” In Transportation Means

The Ninth Circuit has twice applied the exemption

beyond Saxon’s narrow boundaries. First, in Ortiz v.

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

2024), it considered warehouse workers who do not load

goods onto vehicles about to cross a border nor unload

them from vehicles that have just done so. Rather,

the workers merely moved goods from one location

within a warehouse to another, covering a distance

sometimes measured in mere feet. Id. at 1160, 1163.

Though such purely within-a-warehouse work is in no

way “transportation” of goods in any logical sense of the

meaning of “interstate transportation,” Ortiz applied

the exemption to warehouse workers who “fulfilled an

admittedly small” role because they “interacted” and

“handled” interstate goods as they “were still moving in

interstate commerce.” Id. But Saxon never invokes the

concepts of “interacting” or “handling” interstate goods

– instead, it speaks of “active engagement” that is direct

and necessary to their transportation interstate. A good’s

movement of a few feet exclusively within a warehouse is

not a narrow construction of the concept of “interstate”

12

(and Petitioners are right to criticize Ortiz on this basis),

and it is certainly not “transportation” of the goods from

Point A to Point B in any logical understanding of the

word. The district court in Berdugo v. Lululemon USA

Inc. et al., No. 5:25-CV-02252-SSS-DTBX, 2025 WL

3312944 (C.D. Cal. Oct. 30, 2025) relied on Ortiz to apply

the exemption to workers that labeled already-assembled

shipping pallets and moved them onto shipping docks

exclusively within a warehouse, but neither loaded them

onto nor unloaded them from interstate vehicles.

But at least in Ortiz and Berdugo, even if the class

of workers did not transport the goods, they had some

physical “interaction” with them. Menzies Aviation

experienced a more significant deviation from Saxon

in Lopez v. Aircraft Serv. Int’l, Inc., which considered

a class of workers who fuel aircraft. To state the

obvious, the work of such individuals is fueling. They

do not “transport” anything. Indeed, the district court

explicitly acknowledged that “an employee who adds fuel

to cargo planes is not literally moving goods.” Lopez,

2022 WL 18232726, at *3. Yet the district court applied

the exemption to aircraft fuelers because they work

closely “both physically and temporally to the actual

movement of goods,” such that adding fuel to planes

is direct involvement “in the transportation [of goods]

itself.” Id. In other words, the district court did not

focus on the actual work performed by fuelers and the

fact that they do not “transport” anything – instead, it

invented a test relying on the fact that fuelers work in

the same environment as ramp agents and their work

has an impact on the larger process of transportation. Id.

13

On appeal, the Ninth Circuit neither endorsed nor

rejected a physical and temporal proximity analysis.

Instead, the panel added another analytical invention and

applied § 1 because fuelers’ work is “a vital component to

[a plane’s] ability to engage in the interstate and foreign

transportation of goods.” Lopez, 107 F.4th at 1101. One can

only wonder how far such a subjective “vital component”

analysis might go. Certainly aircraft mechanics’ work is

“vital” to a plane’s ability to fly. So too is the work of a deskbased air traffic controller. An office-based dispatcher

performs work that is an important cog in the machinery

of interstate trucking. They all can be said, depending

on how far one stretches the concepts, to perform “vital”

work in “physical and temporal proximity” to workers

who perform the physical act of transporting goods across

borders. Yet none of these classes of workers have “active

engagement” in “interstate transportation” if these

concepts have practical meaning within the confines of

Circuit City. And the concepts of “physical and temporal

proximity” and “vital component” have no grounding in

Saxon – if anything, they more relate to what an employer

does generally than what the class of workers does. That

is the Bissonnette question and this Court’s resolution of

that question is unambiguous.

Two other district courts in 2025 have, with respect

to classes of workers employed by Menzies Aviation,

adopted analyses that expand Saxon’s limiting and plain

language and use industry or impact-on-transportation

factors as the basis for § 1 application. On March 24, 2025,

the Central District of California in Amaya v. Menzies

Aviation (USA), Inc. compelled to arbitration the claims of

36 classes of workers, but denied it as to 29 classes on the

basis of the transportation worker exemption. Relying on

14

Lopez, it exempted (i) nearly every class of workers within

Menzies Aviation’s fueling operation without regard to

their duties (including desk-based personnel who perform

paperwork and personnel whose duties are limited to

operating and maintaining airport fueling systems and

infrastructure); and to (ii) employees whose only job was

to fuel Menzies Aviation’s ground support equipment but

not fuel aircraft. 2025 WL 947132, at *4-5. Relying on

Ortiz, it exempted nearly every class of workers within

Menzies’ cargo warehouse operations, including officebased positions. Id. at *5-6. And it also exempted (i)

employees with desk-based dispatcher jobs; (ii) employees

whose job is to screen cargo for security purposes; and

(iii) supervisory personnel who do not themselves ever

interact with passenger baggage or cargo. Id. at *4-7.

With respect to these positions, the court gave one- to

two-sentence explanations, in many cases considering

what Menzies Aviation does at an operational level and

contextualizing the work of the class to it. Id.

On May 19, 2025, in Joyner v. Frontier Airlines, Inc.

et al., the District of Colorado applied the exemption to two

classes of airport customer service agents whose primary

functions were to (i) help passengers with ticketing and

check-in functions using self-service machinery and

conveyor belt infrastructure, and (ii) board and deplane

passengers at terminal gates. 2025 WL 1503141, at *24. The classes did not load baggage or cargo onto or

off aircraft and, within the airport only, they made use

of conveyor belts for baggage’s “ultimate transport to

the airplane.” Id. at *2-3. The court looked only to the

plaintiffs’ testimony to make findings as to the class of

workers as a whole, and on that basis concluded that the

class of workers “oversee” passengers and “evaluate” them

15

for compliance with airline baggage rules. Id. The district

court determined that these “gatekeeping functions”

qualified them as exempt transportation workers. Id. at

*3-4.

Amaya is on cross-appeal to the Ninth Circuit under

Case Nos. 25-2041 and 25-2350, and Joyner is on appeal to

the Tenth Circuit as Case No. 25-1211. Menzies Aviation

appreciates that it would be improper to suggest that this

Court comment on the propriety of either ruling at this

time. Menzies Aviation instead brings them to this Court’s

attention as illustration of the same concern Petitioners

have raised within the “interstate/intrastate” element:

lower courts adopting “judge-made” rules that depart

from a pure and exclusive focus on what the relevant

class of workers does and instead considers (a) what other

classes of workers do and (b) the impacts on the “bigger

picture” of interstate transportation. For example, as

Petitioners have pointed out, the lower courts in their

case did not only consider the work Brock performed when

making deliveries; instead, they considered how Brock’s

work fit into a larger “transaction,” the work performed

by all individuals involved in the overall transportation of

the goods at issue, and how Brock’s delivery route fit into

the big picture (the “journey”). As Petitioners explain,

under this approach, “Workers who perform exactly the

same work – delivering goods intrastate – may or may not

be exempt depending on the transaction prompting the

goods’ delivery.” Pet. Br. 3. This type of “transaction” or

“big picture” analysis is effectively the same lens applied

in the Lopez, Joyner, and Amaya rulings – but outside

an “interstate/intrastate” context. In Lopez, the Ninth

Circuit applied § 1 to fuelers not because of what they

do, but because of their work’s “vital” impact on others’

16

ability to fly planes and transport goods. In Joyner, the

district court evaluated the plaintiffs’ role in “overseeing”

passengers and relied upon how they make decisions

about what passengers can check and carry onto planes.

In Amaya, the district court exempted classes because of

what department they work in and how their work impacts

other workers (for example, supervisors and desk-based

dispatchers supporting those actually engaged in the

physical transportation work).

Whether looking at “transaction” and “big picture”

concepts within an “interstate/intrastate” context or

within a context that considers whether a class of workers

is “actively engaged” in the frequent act of physically

moving goods, Saxon and Bissonnette seem to instruct

courts to look at what the actual work of a class of workers

is in isolation and answer whether that work is itself

interstate transportation – not whether the work has

an important impact on transportation or is an important

part of an interstate transaction or journey. If Saxon and

Bissonnette mean something different, it is for this Court to

clarify what it meant in its precedents – not for lower courts

to decide to look at a class of workers in context rather than

in isolation when the Saxon test focuses on the class of

workers and Bissonnette clearly eschews some version of a

“big picture” analysis by rejecting employer industry as a

relevant factor. For this reason, Menzies Aviation highlights

its own experiences litigating transportation worker

application to underscore the importance that this Court

resolve the Question Presented in a way that fully promotes

the FAA’s purpose and goal of curtailing litigation and not

allowing for decisions that foster litigation. 3

3. Even where lower courts have declined to apply the

exemption, the types of classes of workers now claiming under

17

B. Residual Clause Litigation Will Continue

Burdening Lower Courts, And They Will

C onti nue Ex p a nd i n g S a x on’s P r e ci s e

Language, Without Comprehensive Reiteration

By This Court Of What It Means To Be A

“Transportation Worker”

Petitioners persuasively argue in their Brief how

the text and purpose of the FAA § 1 residual clause, as

illuminated by Circuit City, Saxon, and Bissonnette,

require that the transportation worker exemption’s

“foreign or interstate commerce” language must mean

“interstate” in the truest sense of that word. Classes

of workers that do not frequently cross state borders

Saxon to be “transportation workers” and the volume of cases they

are bringing emphasizes how, absent unambiguous direction, lower

courts will continue struggling with and be plagued by § 1 arguments

seeking to expand the exemption through “big picture” arguments

and pointing to a class of workers’ impact on the transportation

process. See, e.g., Saks v. DSV Air & Sea, Inc., No. 8:25-CV-01696FWS-ADS, 2025 WL 2995150, (C.D. Cal. Oct. 10, 2025) (office-based

worker that monitors and processes freight movement data not a

transportation worker); Wolford v. United Coal Co., LLC, 164 F. Supp.

3d 329 (W.D. Va. 2025) (coal mine personnel are not transportation

workers); Jennings v. Ed Napleton Elmhurst Imports, Inc., No. 1:23cv-14099, 2025 WL 461433 (N.D. Ill. Feb. 11, 2025) (car salespeople

are not transportation workers); London v. A-1 Quality Logistical

Sols., LLC, No. 23-CV-107, 2024 WL 4266359 (S.D. Ohio Sept. 23,

2024) (warehouse personnel who assemble customer orders are

not transportation workers); Carr v. Traffic Mgmt., Inc., No. 24CV-01333 HDV JCX, 2024 WL 4329070 (C.D. Cal. Aug. 13, 2024)

(air traffic controllers are not transportation workers); Fraga v.

Premium Retail Servs., Inc., 704 F. Supp. 3d 289, 296-98 (D. Mass.

2023) (“merchandisers” whose primary function is to promote sales

of the employer’s product are not transportation workers).

18

while carrying goods or passengers, classes that do not

frequently load goods onto a vehicle that will cross a

border as part of its next immediate journey, and classes

that do not frequently unload goods from a vehicle that

has crossed a border as part of its most recent immediate

journey, are only engaged in intrastate (or “exclusively

local” as Petitioners put it) activities. Unless Saxon and

Bissonnette mean something different than what their

precise language seems to suggest, this Court should

reverse the Tenth Circuit and also reject the First

Circuit’s and the Ninth Circuit’s similar decisions in

Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st Cir. 2020)

and Rittmann.

In so doing however, this Court should issue an opinion

that looks beyond the “interstate/intrastate” implications,

and Menzies Aviation is thankful for the opportunity to

bring to the Court’s attention additional information which

may be of considerable help to the Court as it takes up a

residual clause case for the third time in six years. That

this Court has opted to look again at the § 1 transportation

worker exemption itself speaks to the need to reiterate

the narrow contours of the exemption in a clear and

practical way that district and circuit courts have no

trouble applying, and rein in the expansive, inconsistent

and amorphous language and “bigger picture” analyses

some courts have turned to in the wake of Saxon.

What should it mean under Saxon to be “actively

engaged” and have “direct and necessary involvement”

in interstate commerce? Menzies Aviation submits

the following statement for the Court’s consideration:

Transportation workers are only those classes of workers

19

whose jobs require them to actively and directly move

goods or passengers cross-border as measured by: (i)

themselves frequently transporting passengers or goods

on interstate vehicles across a border; (ii) frequently

loading goods onto vehicles that will cross a border as

part of the most immediate next part of their journey;

and/or (iii) frequently unloading goods from vehicles that

have crossed a border as part of the most recent part of

their journey. This pragmatic statement of what it means

to be a “transportation worker” is an appropriately

narrow application of the residual clause as required

by Circuit City, is directly tied to and consistent with

Saxon’s language, and faithfully follows Bissonnette

by removing industry or operational context from

consideration. It comprehensively answers the question

presented by Petitioners and also resolves what it means

to be actively engaged in “transportation” independent

of geographic considerations, industry, and impact on the

“bigger picture” of the transportation process. If the work

performed by the class of workers at issue is anything

less direct than what this practical articulation of what it

means to be a “transportation worker,” § 2 applies.

Limiting the opinion resolving this matter only to

how courts should consider the geographic aspects of

“interstate commerce” without closing the vagaries of

“interacting with vehicles” and without addressing how

lower courts are purporting to apply Saxon’s language

using industry and employer department factors

will continue to generate litigation over the meaning

of “transportation.” More nebulous and amorphous

“big picture” concepts like “physical and temporal

proximity” and “vital component” that are ripe for

20

subjective and dissonant application will inevitably add

to the jurisprudential vernacular. But uniformity and

predictability in FAA enforcement are paramount, and

if this Court declines to address how lower courts are

using Saxon’s plain and precise language to expand the

transportation exemption to classes of workers that never

transport anything, more FAA litigation over simple

motions to compel arbitration will be the result with

similar facts resulting in different results depending

on jurisdiction. What the Court does in this matter

has tremendous implications for industries, businesses

and workers with any connection to the modalities of

transportation and the channels of interstate commerce

– with common carriers and their business partners,

warehouse and distribution centers, and interstate

vehicle mechanics and maintenance providers to name

but a few.

Menzies Aviation thus speaks both for itself and for

thousands of other employers and the workers they employ

in hoping this Court sees the importance of addressing

the full spectrum of the transportation worker exemption

and slowing the flow of residual clause litigation now

plaguing lower courts. An opinion that that resolves

this matter with an explanation of what it means to be a

“transportation worker” akin to the statement suggested

by Menzies Aviation two paragraphs above will do exactly

that in a manner faithful and complementary to Circuit

City, Saxon, and Bissonnette.

CONCLUSION

The judgment of the Court of Appeals for the Tenth

Circuit should be reversed through an opinion from this

21

Court that addresses the full scope of § 1’s transportation

worker exemption, not merely its interstate/intrastate

aspects.

Dated this December 11, 2025.

Respectfully submitted,

Christopher Ward

Counsel of Record

Foley & Lardner LLP

555 South Flower Street, Suite 3300

Los Angeles, CA 90071

(213) 972-4500

cward@foley.com

John FitzGerald

Foley & Lardner LLP

777 East Wisconsin Avenue

Milwaukee, WI 53202

Counsel for Amicus Curiae

Menzies Aviation, Inc.