Amicus Curiae Brief — Flowers Foods, Inc., et al., Petitioners v. Angelo Brock
Supreme Court briefJan 21, 2026
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No. 24-935
In The
Supreme Court of the United States
Flowers Foods, Inc., et al.,
v.
Angelo Brock,
Petitioners,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Tenth Circuit
BRIEF FOR AMICUS CURIAE AMERICAN
FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS
IN SUPPORT OF RESPONDENT
Matthew J. Ginsburg
Darin M. Dalmat
Counsel of Record
Hannah Cohen Smith*
AFL-CIO
815 16th St., N.W.
Washington, DC 20006
202-637-5021
ddalmat@aflcio.org
*Admitted in ME only. Practice
supervised by D.C. Bar members.
Counsel for Amicus Curiae
Mosaic - (301) 927-3800 - Cheverly, MD
49261_Ltrhd.indd
1
6/11/08
12:44:0
i
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE ......................... 1
SUMMARY OF ARGUMENT .................................
2
ARGUMENT ............................................................
4
I. Brock falls within the § 1 exemption
because he delivers baked goods locally as
part of their continuous movement from
out-of-state bakeries to in-state retail
stores, and the parties to the transportation
of those goods originally and persistently
intend them to cross state lines.......................
4
A. Brock belongs to a class of workers who
deliver Flowers’s products in trucks to
Flowers’s customers...................................
5
B. Brock and other Flowers delivery drivers
engage in interstate transportation by
completing the last leg of a continuous
movement of baked goods, intended from
the outset and throughout the journey to
cross state lines...........................................
7
C. Railroad Labor Board precedent
confirms Brock’s engagement in
interstate transportation........................... 15
II. The Court’s FAA precedents overlook
decisive evidence that, as originally
understood, § 1 exempted all employment
contracts, and the Court should not now
compound its mistake through an unduly
constrained construction of transportation..... 22
CONCLUSION.......................................................... 26
iii
TABLE OF AUTHORITIES
Page
Cases
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935).......................................... 13–15
Baltimore & Ohio S.W. R. Co. v. Settle,
260 U.S. 166 (1922).......................................... 10–11
Bartenwerfer v. Buckley,
598 U.S. 69 (2023).................................................... 7
Bissonnette v. LePage Bakeries Park St., LLC,
601 U.S. 246 (2024).................................................. 7
Bondi v. VanDerStok,
604 U.S. 458 (2025)................................................ 24
Caldwell v. State of North Carolina,
187 U.S. 622 (1903).............................................. 8–9
Central Greyhound Lines of N.Y. v. Mealey,
334 U.S. 653 (1948)................................................ 12
Circuit City Stores, Inc. v. Adams,
532 U.S. 105 (2001).................................. 4, 7, 24–25
Collins v. Heritage Wine Cellars, Ltd.,
589 F.3d 895 (7th Cir. 2009).................................. 12
Copperweld Corp. v. Independence Tube Corp.,
467 U.S. 752 (1984)................................................ 12
Crenshaw v. Arkansas,
227 U.S. 389 (1913).................................................. 9
Deherrera v. Decker Truck Line, Inc.,
820 F.3d 1147 (10th Cir. 2016).............................. 12
Dubin v. United States,
599 U.S. 110 (2023)................................................ 24
iv
TABLE OF AUTHORITIES—Continued
Page
Encino Motorcars, LLC v. Navarro,
584 U.S. 79 (2018).................................................. 26
Escobedo v. Ace Gathering, Inc.,
109 F.4th 831 (5th Cir. 2024)................................ 12
Gibbons v. Ogden,
22 U.S. (9 Wheat. 1) 1 (1824)............... 2, 7–8, 15, 26
Hughes Bros. Timber Co. v. Minnesota,
272 U.S. 469 (1926)................................................ 11
Kennedy v. Equity Transp. Co.,
663 Fed. Appx. 38 (2d Cir. 2016)........................... 12
Kimble v. Marvel Ent., LLC,
576 U.S. 446 (2015)................................................ 25
Lemke v. Farmers’ Grain Co. of Embden, ND,
258 U.S. 50 (1922).................................................. 10
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2004)................................................ 24
Mena v. McArthur Dairy, LLC,
352 Fed. Appx. 303 (11th Cir. 2009)..................... 13
New Prime Inc. v. Oliveira,
586 U.S. 105 (2019).................................................. 7
Rudisill v. McDonough,
601 U.S. 294 (2024)................................................ 24
Southwest Airlines Co. v. Saxon,
596 U.S. 450 (2022).............................................. 4, 7
Texas & New Orleans R.R. Co. v. Sabine Tram Co.,
227 U.S. 111 (1913)........................................... 9, 11
Trade of City of Chicago v. Olsen,
262 U.S. 1 (1923).................................................... 10
v
TABLE OF AUTHORITIES—Continued
Page
United States v. Capital Transit Co.,
325 U.S. 357 (1945)................................................ 12
United States v. Capital Transit Co.,
338 U.S. 286 (1949)................................................ 12
Virginian Ry. Co. v. Sys. Fed’n No. 40,
300 U.S. 515 (1937)................................................ 21
Wabash, St. Louis & Pac. Ry. Co. v. Illinois,
118 U.S. 557 (1886).................................................. 8
Wallace v. Grubhub Holdings, Inc.,
970 F.3d 798 (7th Cir. 2020).................................. 14
Walling v. Jacksonville Paper Co.,
317 U.S. 564 (1943)................................................ 11
Walters v. Am. Coach Lines of Miami, Inc.,
575 F.3d 1221 (11th Cir. 2009).............................. 13
Wells Fargo & Co. v. Taylor,
254 U.S. 175 (1920)................................................ 17
Ysleta Del Sur Pueblo v. Texas,
596 U.S. 685 (2022).................................................. 7
Administrative Decisions
Am. Fed’n of R.R. Workers v. Erie R.R. Co.,
No. 1219, 3 R.L.B. 686 (1922)................................ 20
Am. Fed’n of R.R. Workers v. Erie R.R. Co.,
No. 1963, 4 R.L.B. 616 (1923)................................ 21
Am. Fed’n of R.R. Workers v. N.Y. Central R.R. Co.,
No. 1217, 3 R.L.B. 682 (1922)................................ 20
Am. Fed’n of R.R. Workers v. N.Y. Central R.R. Co.,
No. 1220, 3 R.L.B. 687 (1922)................................ 20
vi
TABLE OF AUTHORITIES—Continued
Page
Am. Fed’n of R.R. Workers v. N.Y. Central R.R. Co.,
No. 2404, 5 R.L.B. 409 (1924)................................ 19
Bhd. of Locomotive Eng’rs v. Cincinnati
Indianapolis & W. R.R. Co.,
No. 1224, 3 R.L.B. 690 (1922)................................ 20
Bhd. of Ry. & S.S. Clerks v. Am. Ry. Express Co.,
No. 1940, 4 R.L.B. 581 (1923)................................ 16
Bhd. of Ry. S.S. Clerks v. Am. Ry. Express Co.,
No. 2824, 6 R.L.B. 65 (1925).................................. 17
Bhd. of Ry. & S.S. Clerks v. Cincinnati,
Indianapolis & W. R.R. Co.,
No. 1263, 3 R.L.B. 758 (1922)................................ 21
Bhd. of Ry. & S.S. Clerks v. Cleveland,
Cincinnati, Chicago & St. Louis Ry. Co.,
No. 1119, 3 R.L.B. 594 (1922)................................ 20
Bhd. of Ry. & S.S. Clerks v. Cleveland,
Cincinnati, Chicago & St. Louis Ry.,
No. 2402, 5 R.L.B. 401 (1924)................................ 19
Bhd. of Ry. & S.S. Clerks v. Delaware,
Lackawanna & W. R.R. Co.,
No. 1279, 3 R.L.B. 813 (1922).......................... 16, 19
Bhd. of Ry. & S.S. Clerks v. Delaware,
Lackawanna & Western R.R. Co.,
No. 3905, 6 R.L.B. 1248 (1925).............................. 21
Bhd. of Ry. & S.S. Clerks v. Erie R.R. Co.,
No. 1210, 3 R.L.B. 667 (1922)................................ 20
Bhd. of Ry. & S.S. Clerks v. Great N. Ry. Co.,
No. 2812, 6 R.L.B. 48 (1925).................................. 16
vii
TABLE OF AUTHORITIES—Continued
Page
Bhd. of Ry. & S.S. Clerks v. N.Y. Central R.R. Co.,
No. 1209, 3 R.L.B. 665 (1922)................................ 20
Bhd. of Ry. & S.S. Clerks v. N.Y. Central R.R. Co.,
No. 1232, 3 R.L.B. 705 (1922)................................ 20
Bhd. of Ry. & S.S. Clerks v. N.Y. Central R.R.,
No. 2401, 5 R.L.B. 396 (1924)................................ 19
Bhd. of Ry. & S.S. Clerks v. N.Y. Central R.R.,
No. 2403, 5 R.L.B. 405 (1924)................................ 19
Chicago, N. Shore & Milwaukee Ry. Co.,
1 N.M.B. 276 (1943)............................................... 16
Fed’n of R.R. Workers v. N.Y. Central R.R. Co.,
No. 1472, 3 R.L.B. 1076 (1922).............................. 16
Firemen & Oilers v. Great N. Ry. Co.,
No. 1213, 3 R.L.B. 673 (1922)................................ 20
IAM v. Atchison, Topeka & Santa Fe Ry.,
No. 2, 1 R.L.B. 13 (1920)........................................ 17
Int’l Ass’n of R.R. Supervisors of Mechanics v.
W. Maryland Ry. Co.,
No. 1888, 4 R.L.B. 491 (1923)................................ 21
Maint. of Way Employees v. Chicago & Alton
R.R. Co., No. 1254, 3 R.L.B. 741 (1922)................ 20
Maint. of Way Employees v. Chicago & N.W.
Ry. Co., No. 1215, 3 R.L.B. 678 (1922).................. 20
Maint. of Way Employees v. Chicago & N. W.
Ry. Co., No. 2173, 5 R.L.B. 174 (1924).................. 21
Maint. of Way Employees v. Chicago Great
W. R.R. Co., No. 1226, 3 R.L.B. 696 (1922)........... 20
Maint. of Way Employees v. Chicago Great
W. R.R. Co., No. 1075, 3 R.L.B. 539 (1922)........... 20
viii
TABLE OF AUTHORITIES—Continued
Page
Maint. of Way Employees v. Chicago Milwaukee
& St. Paul Ry., No. 1222, 3 R.L.B. 689 (1922)...... 20
Maint. of Way Employees v. Chicago, Rock Island,
& Pac. Ry., No. 1256, 3 R.L.B. 747 (1922)............ 20
Maint. of Way Employees v. Erie R.R. Co.,
No. 1218, 3 R.L.B. 683 (1922)................................ 20
Maint. of Way Employees v. Indiana Harbor Belt
R.R. Co., No. 1079, 3 R.L.B. 545 (1922)................ 20
Maint. of Way Employees v. Missouri-Kansas-Texas
Lines, No. 2207, 5 R.L.B. 213 (1924)..................... 21
Maint. of Way Employees v. San Antonio, Uvalde
& Gulf R.R., No. 1212, 3 R.L.B. 670 (1922).......... 20
Maint. of Way Employees v. St. Louis S.W. Ry. Co.,
No. 120, 2 R.L.B. 86 (1921).................................... 20
Maint. of Way Employees v. St. Louis-San
Francisco Ry. Co.,
No. 1230, 3 R.L.B. 700 (1922)................................ 20
Maint. of Way Employees v. St. Louis San
Francisco Ry. Co.,
No. 1231, 3 R.L.B. 702 (1922)................................ 20
Maint. of Way Employees v. W. Maryland Ry. Co.,
No. 1889, 4 R.L.B. 493 (1923)................................ 21
Norfolk & W. Ry. Co.,
1 N.M.B. 68 (1938)................................................. 16
Order of R.R. Telegraphers v. S. Pac. Co.,
No. 1634, 4 R.L.B. 139 (1923)................................ 21
Ry. Employees’ Dept. v. Ann Arbor R.R. Co.,
No. 1264, R.L.B. 762 (1922)................................... 21
ix
TABLE OF AUTHORITIES—Continued
Page
Ry. Employees’ Dept. v. Bangor & Aroostook R.R.,
No. 1257, 3 R.L.B. 750 (1922)................................ 21
Ry. Employees’ Dept. v. Chicago Great W. R.R. Co.,
No. 1076, 3 R.L.B. 540 (1922)................................ 20
Ry. Employees Dept. v. Chicago Great W. R.R. Co.,
No. 1225, 3 R.L.B. 692 (1922)................................ 20
Ry. Employees’ Dept. v. Cleveland, Cincinnati,
Chicago & St. Louis Ry. Co.,
No. 1259, 3 R.L.B. 752 (1922)................................ 21
Ry. Employees’ Dept. v. Erie R.R. Co.,
No. 1214, 3 R.L.B. 675 (1922)................................ 20
Ry. Employees’ Dept. v. Erie R.R. Co.,
No. 1241, 3 R.L.B. 727 (1922)................................ 20
Ry. Employees’ Dept. v. Indiana Harbor Belt R.R. Co.,
No. 982, 3 R.L.B. 332 (1922).................................. 18
Ry. Employees’ Dept. v. Indiana Harbor Belt R.R. Co.,
No. 1235, 3 R.L.B. 709 (1922)................................ 20
Ry. Employees’ Dept. v. Michigan Central R.R. Co.,
No. 1255, 3 R.L.B. 745 (1922)................................ 20
Ry. Employees’ Dept. v. MKT Ry. Co.,
No. 1080, 3 R.L.B. 548 (1922)................................ 20
Ry. Employees’ Dept. v. N.Y. Central R.R. Co.,
No. 1216, 3 R.L.B. 679 (1922)................................ 20
Ry. Employees’ Dept. v. Pere Marquette Ry. Co.,
No. 1260, 3 R.L.B. 754 (1922)................................ 21
Ry. Employees’ Dept. v. St. Louis Brownsville &
Mexico Ry., No. 1078, 3 R.L.B. 544 (1922)............ 20
Ry. Employees’ Dept. v. W. Maryland Ry. Co.,
No. 1361, 3 R.L.B. 934 (1922)................................ 21
x
TABLE OF AUTHORITIES—Continued
Statutes
Page
Act of June 30, 1926, ch. 713, 44 Stat. 778............... 23
Federal Arbitration Act
9 U.S.C. § 1............................... 2–4, 7, 11, 15, 22–26
Federal Arbitration Act, Pub. L. 68-401,
43 Stat. 883 (1925)....................................... 3, 22–23
Publication Act,
ch. 333, 18 Stat. 113 (1874)................................... 22
Railway Labor Act,
Pub. L. 69-257, 44 Stat. 577 (1926)....................... 15
Transportation Act of 1920,
§§ 300–16, 41 Stat. 456 (1920).................... 7, 15, 18
1 U.S.C. § 112......................................................... 4, 22
Other Authorites
A. Scalia & B. Garner, Reading Law (2012)............. 26
E. Wilder Spaulding, Law Publications of the
Department of State,
3 Dep’t St. Bull. 301 (1940).................................... 23
Lighterage, Black’s Law Dictionary
(12th ed. 2024)........................................................ 15
1
INTEREST OF AMICUS CURIAE 1
The American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO) is a federation of
64 national and international labor organizations that
represent 15 million working people. Over the course
of its 140-year history, dating to 1886, the AFL-CIO
has gained significant expertise in the structure of
work, including the transportation work at issue in
this case. It has an interest in this Court’s jurisprudence reflecting the realities of work in our Nation.
It also has a historical interest in this case insofar
as many parties to cases before the Railroad Labor
Board (RLB), which administered the Transportation
Act of 1920, were unions affiliated with the AFL at the
time. As this Court has recognized, those precedents
inform the proper interpretation of the Federal Arbitration Act (FAA).
Beyond its historical interests, the AFL-CIO has
current interests in this case as well. Many of its affiliates’ members rely on arbitration to resolve labor
disputes and, as this Court has recognized, they have
an interest in ensuring that arbitration under the
FAA does not interfere with the dispute-resolution
mechanisms administered pursuant to other statutes.
Additionally, where its affiliates’ members may not be
covered by arbitration under a collective-bargaining
agreement or labor statute, the AFL-CIO has an interest in ensuring that those workers may enforce
their legal rights at the workplace through appropriate forums provided by federal and state law, unimpeded by unduly narrow interpretations of the exemption to FAA coverage.
1 No counsel for a party authored this brief in whole or in part,
and no person or entity, other than the amicus curiae, made a monetary contribution to the preparation or submission of this brief.
2
SUMMARY OF ARGUMENT
I. Brock falls within the FAA’s § 1 exemption because
he delivers baked goods locally as part of their continuous movement, intended from the outset and at all
times, from out-of-state bakeries to in-state retail stores.
This Court interprets the FAA in light of its ordinary meaning at the time of enactment, informed by
Congress’s presumed knowledge of pre-existing precedent. By the time Congress enacted the FAA, both this
Court and the RLB recognized that work performed
locally in a segment of an overall interstate journey
was part of interstate transportation, especially where
the parties always intended the continuous interstate
transportation of goods.
This Court first announced that approach in Gibbons v. Ogden, 22 U.S. (9 Wheat. 1) 1 (1824), and amplified it in case after case in the century from that
decision to the FAA’s enactment. Under that precedent, intermediate layovers—including at distribution warehouses—did not undermine the transportation’s interstate character. Whether the shipper itself
transported the cargo or did so through a series of local contractors was also irrelevant. The key to the
Court’s jurisprudence was the essential character of
the movement: where did the parties intend for the
shipment to start and ultimately stop? Transportation that required multiple companies to complete
each segment of an overall through-line was no less
interstate for the corporate cooperation.
RLB precedent from 1920 through 1925 fully accorded with those basic principles. For example, the RLB
repeatedly exercised jurisdiction over local delivery
workers—like lighterers, warehouse truckers, express
truck drivers, and freight handlers—who themselves
never crossed state lines for their jobs. That’s no sur-
3
prise. Numerous railroad positions never required
workers to travel out of state, yet all those positions
contributed directly to the operation of the railroad.
Consistent with this Court’s focus on the movement
of the goods transported, rather than the corporate
entity conducting the hauling, the RLB consistently
found railroads in violation of the Transportation Act
when they contracted out work subject to prior awards
for railroad workers’ wages. The major theme of that
long line of decisions is that Congress provided dispute-resolution mechanisms in the Transportation
Act to safeguard the public’s right to uninterrupted
travel, and if railroads could evade the fruits of those
mechanisms—wage awards—by contracting out railroad work, the contracted-out workers in turn could
strike and disrupt the public’s right to uninterrupted
travel. The public interest accordingly depended on
whether the regulated work functioned as part of the
railroad operation, not on whether the workers themselves were direct railroad employees or employees of
companies who contracted with railroads.
Brock and other delivery drivers complete Flowers’s
delivery of goods baked in one state and shipped to
retail outlets in another. They are engaged in interstate transportation under that precedent.
II. The Court’s FAA precedents overlook decisive evidence that, as originally understood, FAA § 1 exempted all employment contracts, not merely those with
transportation workers. That evidence is the marginal
note to § 1, printed in the Statutes at Large. FAA,
Pub. L. 68-401, 43 Stat. 883, 883 (1925). That note
says the FAA is “[n]ot applicable to employment contracts of workers.” Id.
The Secretary of State prepared that marginal note,
pursuant to his obligation—in effect from 1874 through
1950—to publish Statutes at Large at the close of each
4
session of Congress. He discharged that obligation
with the utmost care, recognizing that, by law, the
published Statutes at Large provides legal evidence of
the content of federal law. See 1 U.S.C. § 112.
The Court accordingly erred in overlooking that evidence when it decided Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), and limited the § 1 exemption to contracts with transportation workers, rather
than all employment contracts. To be fair, no party to
that case even cited the session law, let alone highlighted the significance of the marginal note.
Recognizing the force of statutory stare decisis, we
don’t ask the Court to correct that mistake in this
case. But the Court should account for that decisive
evidence of the original public meaning of the scope of
§ 1’s exemption by making sure not to compound the
error with an unduly narrow interpretation of transportation work. Fortunately, this Court, for two centuries now, has properly understood that interstate
transportation includes local delivery of goods that
are part of an overall interstate journey. The Court
should reject petitioner’s request to retreat from that
longstanding understanding.
ARGUMENT
I. Brock falls within the § 1 exemption because
he delivers baked goods locally as part of
their continuous movement from out-of-state
bakeries to in-state retail stores, and the
parties to the transportation of those goods
originally and persistently intend them to
cross state lines.
This Court follows a two-step test for exemption under § 1. Southwest Airlines Co. v. Saxon, 596 U.S. 450,
455 (2022). First, it identifies the relevant “class of
5
workers” to which the worker belongs, focusing on the
work performed by the worker himself rather than on
his employer’s business more generally. Id. at 455–56.
Next, it determines whether that “class of workers is
engaged in foreign or interstate commerce.” Id. at 455
(cleaned up). The second inquiry requires the worker
to “play a direct and necessary role in the free flow of
goods across borders” or, equivalently, to be “actively
engaged in transportation of . . . goods across borders
via the channels of foreign or interstate commerce.”
Id. at 458 (cleaned up). The worker, however, needn’t
himself “physically move goods or people across” state
or international boundaries. Id. at 461–63.
A. Brock belongs to a class of workers who
deliver Flowers’s products in trucks to
Flowers’s customers.
All agree Brock belongs to a class of workers who
deliver Flowers goods in trucks to its customers. Pet.
App. 11a; Pet. Br. 11; Resp. Br. 15. All also agree that,
like Flowers’s other delivery drivers, Brock doesn’t
himself cross state lines as part of that delivery. Pet.
App. 12a; Pet. Br. 11; Resp. Br. 16.
Brock works as part of Flowers’s direct-store-delivery program, Pet. App. 4a, through which Flowers distributes its products directly to its customers’ stores
(as opposed to its customers’ warehouses). CA.App.
141.2 Flowers’s customers are retail outlets, like supermarkets and restaurants. Id.
To start the direct-store delivery process, Brock
submits orders for Flowers’s Colorado customers to
out of state bakeries in Texas, Nevada, California, Ar-
2 “CA.App.” refers to the Defendants-Appellants’ appendix
filed with the Tenth Circuit as document #19-1.
6
izona, and other states. Pet. Br. 9; JA 96; CA.App. 266.
The out-of-state bakeries then bake the perishable
goods and ship them across state lines to Flowers’s
warehouse in Colorado, where Flowers workers unload them and put them in a designated place. JA 93,
95–96; Pet. App. 5a. Brock then picks up the products
the evening they arrive and delivers them, unaltered,
to retail outlets for sale. CA.App. 272; JA 9, 96.
Because those baked goods have a “very limited
shelf life,” they are “not held in any sort of inventory
except in exceptional circumstances.” CA.App. 272.
They aren’t “altered or processed during the temporary pause at the distribution” warehouses where
they typically stay only six to twelve hours. Id. In the
words of a Flowers officer, the products “are in nearly
continuous movement from the [out-of-state] point of
origin to the [in-state] point of destination.” Id. Indeed, Flowers tracks the interstate shipments from
the producing bakeries to the retail outlets, JA 96, 23
(§ 10.1), and delivery drivers must remove stale products from the retail stores, a certain percentage of
which Flowers buys back. JA 25–26.
Flowers and its bakeries “are aware that the products they produce in response to such orders are for
end customers, and not simply a warehouse, given the
structure of the [direct store delivery] system, the perishable nature of the goods, and the specific quantity
ordered by each Distributor.” CA.App. 272. That
awareness results, in part, from the distributor agreement itself, which obligates Flowers to make and deliver baked goods to its in-state distributors for the
purpose of supplying them to in-state retail outlets.
JA 17 (§ 6.1); see also JA 9–10 (§§ 2.1, 2.2–2.3, 2.5).
In short, the agreed class of drivers to which Brock
belongs (those who deliver Flowers goods in trucks to
its customers) performs the final segment of a contin-
7
uous movement of baked goods from out-of-state bakeries to in-state retailers—with Flowers, the retailers,
and delivery drivers like Brock fully aware, from the
get-go, that the baked goods are intended to make this
interstate journey from bakeries to retail outlets.
B. Brock and other Flowers delivery drivers
engage in interstate transportation by
completing the last leg of a continuous
movement of baked goods, intended from
the outset and throughout the journey to
cross state lines.
This Court’s recent FAA cases emphasize the fundamental tenet that courts properly read statutes in
accord with their “ordinary meaning at the time Congress enacted” them. New Prime Inc. v. Oliveira, 586
U.S. 105, 113 (2019) (cleaned up). Accord Southwest
Airlines, 596 U.S. at 455. This Court also “ ‘generally
assumes that, when Congress enacts statutes, it is
aware of this Court’s relevant precedents,’ ” Bartenwerfer v. Buckley, 598 U.S. 69, 80 (2023) (quoting Ysleta
Del Sur Pueblo v. Texas, 596 U.S. 685, 701 (2022)),
and other precedents construing “statutes designed to
protect the movement of goods in commerce.” See Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S.
246, 253 (citing Circuit City, 532 U.S. at 121). Specifically, this Court has looked to RLB precedent under
the Transportation Act of 1920, §§ 300–16, 41 Stat.
456, 469–74 (1920), to limn FAA’s § 1 exemption. New
Prime, 586 U.S. at 120 n.11. Applying those standards,
Flowers’s delivery drivers clearly engage in interstate
transportation.
1. Since 1824, this Court has recognized that intrastate navigation is part of interstate commerce when
sufficiently “connected” to an interstate journey. Gibbons, 22 U.S. at 197, 239–40 (invalidating state law
8
giving seamen exclusive rights to navigate steamships
within the state, where federal law regulated coastal
navigation regardless of vessel). As Chief Justice Marshall explained for the Court, “commerce,” under the
Constitution, is a “unit, every part of which is indicated by the term,” so interstate commerce does not
“stop at the external boundary line of each State, but
may be introduced into the interior.” Id. at 194. As a
result, if a “foreign voyage may commence or terminate at a port within a State,” interstate commerce
continues into the state. Id. at 195.
The Court amplified this analysis when railroads
overtook sea-based navigation as the Nation’s primary means of interstate transportation. Where there is
“continuous transportation of goods” reflecting “but
one voyage” across state lines, the continuous journey
is interstate commerce, regardless of the ‘instrumentalities by which the transportation from the one point
to the other is effected . . . .” Wabash, St. Louis & Pac.
Ry. Co. v. Illinois, 118 U.S. 557, 572–73, 577 (1886)
(invalidating state law purporting to regulate rates
only of the intrastate segment of railroad transportation that was part of an interstate journey). The contrary approach, with each state regulating intrastate
“transportation of goods and chattels through the
country,” would interfere with and “seriously embarress[]” [sic.] interstate transportation. Id. at 573.
This analysis governed case after case leading up to
the FAA’s 1925 enactment.
A picture-frame-deliverer, who delivered pictures
only within Greensboro, North Carolina, engaged in interstate commerce where the picture company shipped
the goods from Chicago, Illinois, to a railroad depot in
Greensboro for the worker to pick up and deliver locally. Caldwell v. North Carolina, 187 U.S. 622, 630–32
(1903). “That the articles were sent as freight by rail,
9
and were received at the railroad station by an agent
who delivered them to the respective purchasers, in nowise changes the character of the commerce as interstate.” Id. at 632. Exempting from interstate transportation goods sent to a local delivery agent, the Court
feared, “would evidently take a considerable portion of
. . . traffic out of the salutary protection of the interstate
commerce clause of the Constitution.” Id.
A stove range deliverer who worked only within an
Arkansas county and was convicted for operating without a state license obtained a vacatur of his conviction
under the state licensing law. Crenshaw v. Arkansas,
227 U.S. 389, 392, 395 (1913). Looking to substance,
not labels, the Court found the local delivery to be part
of interstate commerce because “[o]rders are taken
and transmitted to the manufacturer in another state
for ranges to be delivered in fulfillment of such orders,
which are in fact shipped in interstate commerce and
delivered to the persons who ordered them.” Id. at 401.
Similarly, shipping lumber between two Texas cities
for export to Europe was foreign commerce. Texas &
New Orleans R.R. Co. v. Sabine Tram Co., 227 U.S.
111, 122 (1913). This conclusion stood even though the
contract between the exporter, who ordered the shipment, and the manufacturer, which sent the lumber on
its way, did not address the lumber’s final destination.
Id. at 123 (contract itself “did not contemplate, provide
for, or even intend, that the freight should go beyond”
a port city within Texas). An agreed final destination
was irrelevant. Id. at 124–25. The dispositive question
was whether there was “continuity of movement” to a
“foreign destination intended at the time of the shipment.” Id. at 124. The “absence of a definite foreign
destination” did not undermine the essential interstate character of the shipment. Id. at 130.
10
Likewise, a grain producer that sold grain in-state
to buyers who later shipped them to markets in other
states engaged in interstate commerce. Lemke v.
Farmers’ Grain Co. of Embden, ND, 258 U.S. 50, 53–
55 (1922). The producer did not itself conduct the interstate shipment but knew its buyers would ship its
wheat out of state. Id. at 54. This Court had “no question” that such a “course of dealing constitutes interstate commerce . . . .” Id.
Indeed, a “through shipment” of grain—that is, a
continuous one with local intermediate points3—maintained its “interstate character” even when the grain
was “stored in warehouses and mixed with other grain”
at an intermediate point in the journey. Bd. of Trade of
City of Chicago v. Olsen, 262 U.S. 1, 33–34 (1923).
And the last leg—from one station in Cincinnati
(Madisonville) to another in Cincinnati (Oakley)—of
lumber’s journey from the South was interstate transportation where the Cincinnati-based shipper ordered
the lumber from across state lines. Baltimore & Ohio
S.W. R.R. Co. v. Settle, 260 U.S. 166, 167–68 (1922).
The shipper’s “original and continuing intention so to
reship” the lumber locally made that last leg of the
trip “part of a through interstate movement,” even
though the “contract of transportation entered into
between shipper and carrier” didn’t include the final
local leg. Id. at 168–169. A carrier simply cannot “convert an interstate shipment into intrastate transportation” by chopping the continuous journey into its
“component parts.” Id. at 170.
A temporary pause at an “intermediate stopping
place,” like a warehouse, does not interrupt the inter-
3 Think of a flight from, say, El Paso, Texas, to Denver, Colorado, with a layover in Dallas/Ft. Worth.
11
state character of otherwise continuous interstate
movement. Settle, 260 U.S. at 170–71. Like a relayrace baton, a good shipped from one state to another
with a temporary layover at a warehouse moves continuously even though carried by many hands.4
Thus, by 1925, this Court had firmly established
that local delivery is part of interstate commerce when
the local movement of goods is part of a continuous,
overall interstate journey (even one that includes intermediate layovers), intended at the outset for destination in another state. The Congress that enacted
the FAA surely knew this clear rule when it exempted
from FAA coverage agreements of “workers engaged
in foreign or interstate commerce.” 9 U.S.C. § 1.
The Court continued to adhere to this rule, for both
water and land transportation, after the FAA’s enactment. See, e.g., Hughes Bros. Timber Co. v. Minnesota,
272 U.S. 469, 472–76 (1926) (segment of timber shipment by vessel on intrastate river, interstate transportation, where timber was loaded from river onto
rail for further interstate shipment, regardless of title
during initial, intrastate leg); Walling v. Jacksonville
Paper Co., 317 U.S. 564, 565–68 (1943) (branches of
4 Settle and Sabine Tram thus likely supersede ICC v. Detroit,
Grand Haven & Milwaukee Ry. Co., 167 U.S. 633 (1897), relied
upon by an amicus supporting Flowers. See Amazon Br. 16–17.
Detroit Grand Haven found delivery by cart of passengers’ cargo
from the railroad terminal to their homes or destinations no longer part of transportation by rail. Id. at 644. To the extent that
holding turned on the definition of transportation by rail under
the Interstate Commerce Act, see id. at 644, it’s distinguishable
because interstate transportation under this Court’s FAA jurisprudence isn’t limited to any particular mode of transportation.
And to the extent Amazon would read Detroit Grand Haven more
broadly to apply to final segments of interstate transportation
generally, Settle and Sabine Tram jettisoned that approach
shortly before Congress enacted the FAA.
12
wholesale distributor, which did not themselves deliver across state lines, engaged in interstate commerce by picking up goods at interstate carriers’ terminals, for local distribution, where goods moved
continuously, with only temporary stops, on interstate
journey); United States v. Capital Transit Co., 325
U.S. 357, 363 (1945) (passengers’ commute from District of Columbia to Virginia was one interstate journey, such that intra-state segment was part of an interstate trip in the “commonly accepted sense of the
transportation concept”); United States v. Yellow Cab
Co., 332 U.S. 218, 228–29 (1947) (transportation of interstate passengers and luggage between stations in
one city, instate commerce, where overall journey is
interstate), overruled on other grounds by Copperweld
Corp. v. Independence Tube Corp., 467 U.S. 752 (1984);
Central Greyhound Lines of N.Y. v. Mealey, 334 U.S.
653, 655–56 (1948) (“It is too late in the day to deny
that transportation which leaves a State and enters
another State is ‘Commerce . . . among the several
states’ simply because the points from and to are in
the same State.”); United States v. Capital Transit,
Co., 338 U.S. 286, 288–90 (1949) (District of Columbia
bus company that transported passengers only within
District was part of interstate transportation where
passengers continued commute on other companies’
connecting bus lines to and from Virginia).5
5 Lower courts have followed suit in applying the Fair Labor
Standards Act (FLSA) motor-carrier exemption, which requires
engagement in interstate commerce, to first- or last-leg drivers
who deliver products locally as part of an overall interstate shipment. See, e.g., Escobedo v. Ace Gathering, Inc., 109 F.4th 831,
834–37 (5th Cir. 2024) (crude oil haulers); Kennedy v. Equity
Transp. Co., 663 Fed. Appx. 38, 40 (2d Cir. 2016) (Pepsi product
driver); Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147,
1154–59 (10th Cir. 2016) (drivers of brewery materials); Collins
v. Heritage Wine Cellars, Ltd., 589 F.3d 895, 896–901 (7th Cir.
13
Brock’s local delivery of Flowers’s baked goods easily satisfies this longstanding rule. Flowers’s own officer admits its baked goods travel in a “nearly continuous movement from the point of origin to the point
of destination,” and that, like Flowers, the out-of-state
bakers are “aware that the products they produce in
response to such orders are for end customers, and not
simply a warehouse, given the structure of the [direct
store delivery] system, the perishable nature of the
goods, and the specific quantity ordered by each Distributor.” CA.App. 271–72. Indeed, Flowers keeps an
eye on its products throughout the interstate journey
and maintains an interest in them after the journey
ends at the retail stores—reserving the right to repurchase stale products to protect its brand. Supra at 6.
Those sworn concessions establish the continuity of
movement along an interstate journey and the original, persistent intent to ship baked goods across state
lines. That’s all that’s needed to show Brock engaged
in interstate transportation.
2. Some amici supporting Flowers contend A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935), followed a contrary approach for last-leg deliverers. See DRI Br. at 5, 7, 13; Coalition for Workforce
Innovation Br. at 7. They misread that case by conflating live chickens with their ready-to-cook butchered parts. In Schechter, live chickens moved by rail
from several states to railroad terminals within New
York City (and some additional terminals in New Jersey). 295 U.S. at 520. The shippers’ agents then picked
2009) (wine transporter); Mena v. McArthur Dairy, LLC, 352
Fed. Appx. 303, 306–07 (11th Cir. 2009) (dairy product drivers);
Walters v. Am. Coach Lines of Miami, Inc., 575 F.3d 1221, 1229–
30 (11th Cir. 2009) (bus drivers); Shew v. Southland Corp., 370
F.2d 376, 380–81 (5th Cir. 1966) (dairy product hauler).
14
them up from those terminals and trucked them to a
slaughterhouse in Brooklyn. Id. at 521, 542–43. The
Court considered that continuous journey—from outof-state poultry farms, to New York City railroad terminals, to the Brooklyn slaughterhouse—an “interstate” transaction, even though the trucking from
Manhattan to Brooklyn was entirely intrastate. The
interstate transportation of live chickens “ended” at
the Brooklyn slaughterhouse. Id. at 543. Why? Because the live chickens came to a “permanent rest” at
the slaughterhouse, as the Court euphemistically put
it. Id. at 543. More directly, the Brooklyn slaughterhouse was where the chickens were “immediately
slaughtered, prior to delivery” in “slaughtered form.”
Id. at 521, 524 (cleaned up). In short, the interstate
transportation of live chickens included the intrastate
Manhattan-to-Brooklyn hauling by truck (during
which the chickens were still alive) but excluded the
trip from the Brooklyn slaughterhouse to Brooklyn
butchers and grocery stores because, by that point,
the live chickens had been transformed into a wholly
different product.
Had Flowers shipped flower, yeast, and water to
Denver for Brock to bake Wonderbread there and then
deliver it to local grocery stores, Schechter would deem
the purely intrastate hauling of that bread intrastate
transportation. See also Wallace v. Grubhub Holdings, Inc., 970 F.3d 798, 799, 802–03 (7th Cir. 2020)
(Barrett, J.) (local meal deliverer not subject to FAA
exemption based on prior interstate travel of ingredients, where meal itself never crossed state borders).
But because Flowers shipped Brock freshly baked
bread and pastries for the final, local delivery, unaltered, CA.App. 272, Schechter deems the entire trip
from out-of-state bakeries through the warehouse and
delivery to local grocery stores to be one interstate
journey, which Brock is engaged in.
15
Accordingly, Schechter accords with the century of
pre-1925 precedent, from Gibbons onward, combined
with another century of post-FAA adherence to that
precedent, that make pellucid that Brock is a worker
“engaged in foreign or interstate commerce” under
FAA § 1.
C. Railroad Labor Board precedent confirms
Brock’s engagement in interstate
transportation.
1. From 1920 through 1926 (when succeeded by the
Railway Labor Act6), the Transportation Act of 1920
governed labor relations between railroad carriers
and their employees. Transportation Act of 1920,
§§ 300–16, 41 Stat. 456, 469–74 (1920).
The Act applied only to certain railroad carriers engaged in interstate commerce. Id., § 300(1), (4), 41
Stat. 469. And it imposed specified duties on “all carriers and their officers, employees, and agents.” Id.,
§ 301, 41 Stat. 469.
The RLB—which administered the Act—repeatedly exercised jurisdiction over local delivery drivers, even when railroads contracted out work previously performed by their direct employees. These
repeated holdings, on the eve of the FAA’s enactment, show interstate transportation included local
delivery when customary and necessary to railroad
operations.
When a railroad, for example, turned over its lighterage—work transferring freight between a ship and
a railroad car by truck7—to third-party companies,
whose truck drivers worked at piers entirely within a
6
Railway Labor Act, Pub. L. 69-257, 44 Stat. 577 (1926).
7
Lighterage, Black’s Law Dictionary (12th ed. 2024) (sense 3).
16
state (New Jersey, New York, and Pennsylvania, respectively), the RLB exercised jurisdiction over the
employees and found the contracting-out violated the
wages and working rules awarded by earlier RLB decisions and thus violated the Act. Bhd. of Ry. & S.S.
Clerks v. Delaware, Lackawanna & W. R.R. Co., No.
1279, 3 R.L.B. 813, 813–17 (1922).
The RLB also exercised jurisdiction and restored
awarded wages when railroads contracted out the
work of warehouse truckers, who hauled freight locally from warehouses to railroad cars. Bhd. of Ry. &
S.S. Clerks v. Cincinnati, Indianapolis & W. R.R. Co.,
No. 1262, 3 R.L.B. 757, 757–58 (1922).8 Truck drivers
who delivered mail locally within Toledo, Ohio, also
fell within the RLB’s jurisdiction. Am. Fedn. of R.R.
Workers v. New York Central R.R. Co., No. 1472, 3
R.L.B. 1076, 1076–77 (1922).
In denying a seniority-based claim for a job transfer of an express company truck driver who worked
only within Philadelphia, completing express messenger runs, the RLB again exercised jurisdiction
over the delivery driver notwithstanding the wholly
local nature of his work. Bhd. of Ry. & S.S. Clerks v.
Am. Ry. Express Co., No. 1940, 4 R.L.B. 581, 581–82
(1923).
In January 1925—just a month before Congress enacted the FAA—the RLB exercised jurisdiction over
drivers who delivered freight and oil locally, within
Great Falls, Montana, in sustaining those workers’
wage claim. Bhd. of Ry. & S.S. Clerks v. Great N. Ry.
Co., No. 2812, 6 R.L.B. 48, 48–49 (1925).
8 For more detail on the work of railroad warehouse truckers,
see, e.g., Norfolk & W. Ry. Co., 1 N.M.B. 68, 72 (1938); Chicago,
N. Shore & Milwaukee Ry. Co., 1 N.M.B. 276, 279 (1943).
17
And in the same month, the RLB also exercised jurisdiction over a messenger who delivered messages
by railroad between two California cities. Bhd. of Ry.
S.S. Clerks v. Am. Ry. Express Co., No. 2824, 6 R.L.B.
65, 65–67 (1925).9
The RLB thus consistently recognized deliverers
who worked only within a single state—whether they
operated by truck or by railroad, and whether they
operated for contractors or as carrier employees—to
fall within the Board’s jurisdiction to regulate interstate commerce.
2. These local-delivery decisions accord with the fact
that many employees have long worked for railroads
without crossing state lines themselves.
While countless decisions could be cited as proof of
the point, the Court need not look beyond IAM v.
Atchison, Topeka & Santa Fe Ry., No. 2, 1 R.L.B. 13
(1920)—the RLB’s first wage award. That decision
governed labor relations for 18 unions and scores of
carriers (the double-columned list of which spans four
pages of reported decisions). The wage tables identify
numerous employees whose work didn’t require them
to cross state borders, including, among many others,
storekeepers, janitors, ticket handlers, warehouse
workers, bridge builders, telegraphers, ash-pit men,
engine-room oilers, boiler-room tenders, yard masters, stationary engineers, and stationary firemen. Id.
at 22–27. Railroad work necessarily included a wide
variety of local work that never required individual
employees themselves to cross state lines. Yet, all un9 Wells Fargo & Co. v. Taylor, 254 U.S. 175 (1920), is thus of
no moment as it held only that an express messenger wasn’t a
railroad employee under the Federal Employers’ Liability Act. It
nonetheless recognized the messenger was injured while engaged and employed in “interstate commerce.” Id. at 187–88.
18
questionably worked directly and necessarily as part
of interstate transportation.10
3. The RLB’s local-delivery decisions also accord with
its consistent refusal to allow railroads to circumvent
wages and work rules established as “just and reasonable” in prior RLB decisions by contracting out work
to companies who paid less. Transportation Act,
§ 307(d), 41 Stat. at 471.
The RLB explained this position at length in Railway Employees’ Department v. Indiana Harbor Belt
Railroad Co., No. 982, 3 R.L.B. 332 (1922), a case involving contracting out work of the carrier’s car-repair
shop. The Board accepted the validity, as a contractual matter, of the agreements sending the work from
the railroads to other companies. Id. at 336. It nonetheless held those contracts violated the Transportation Act, whose purpose was to “prevent interruption
to [railroad] traffic, growing out of disputes between
carriers and their employees.” Id. at 337 (citing § 301).
In the wake of labor disputes that had, for years, disrupted railroad transportation, Congress’s concern
was eminently practical and, the RLB recognized,
“undoubtedly contemplate[d] those engaged in the
customary work directly contributory to the operation
10 Flowers argues the RLB did not have jurisdiction over
workers who performed local work by incorrectly focusing on the
RLB’s jurisdiction over only interstate carriers. Pet. Br. 28–31.
As demonstrated by the litany of cases cited above, the RLB regularly asserted jurisdiction over workers who did only local work
when those individuals worked for interstate carriers properly
subject to the Act. Flowers’s focus on the nature of the carrier’s
business, rather than the employees’ work, is thus misplaced.
19
of the railroads.” Id.; accord id. at 339. For, if railroads could evade RLB decisions establishing just and
reasonable wages by contracting out customary railroad work, the now-contracted-out workers could
strike and interrupt railroad operations just as dramatically as if they had been direct railroad employees. Id. at 337–38. Whether a railroad used its own
employees or contracted out work “essential to its operation” to other companies, the public’s interest in
uninterrupted railroad transportation remained the
same. Id. at 339. Congress’s chosen means of securing
that interest—RLB wage awards—applied equally to
contracted out work that was essential to railroad operations. Id.
The RLB later applied its Indiana Harbor holding
to cases involving contracted companies that used
their own tools, equipment and facilities and, even before the enactment of the Transportation Act, had performed the same kind of work as the railroad hired
them to perform where the contracting evaded prior
wage awards. Bhd. of Ry. & S.S. Clerks, No. 1279, 3
R.L.B. at 816, 818. Cf., id. at 821–24 (dissenting opinion contending, based on liberty of contract, Indiana
Harbor shouldn’t apply to truly independent contractors performing work in their usual line of business).
As long as the work was part of the carrier’s “necessary and customary work,” the Transportation Act
covered it, whether performed by railroad employees
or employees of railroad contractors. Bhd. of Ry. &
S.S. Clerks v. NY Central R.R., No. 2401, 5 R.L.B. 396,
400 (1924); Bhd. of Ry. & S.S. Clerks v. Cleveland,
Cincinnati, Chicago & St. Louis Ry., No. 2402, 5 R.L.B.
401, 404 (1924); Bhd. of Ry. & S.S. Clerks v. NY Central R.R., No. 2403, 5 R.L.B. 405, 408 (1924); American Fedn. of R.R. Workers v. NY Central R.R. Co., No.
2404, 5 R.L.B. 409, 412 (1924).
20
Similar opinions fill the pages of the RLB reporters.11 These decisions leave no doubt that whether
11 See Maint. of Way Employees v. St. Louis S.W. Ry. Co., No.
120, 2 R.L.B. 96 (1921); Maint. of Way Employees v. Chicago Great
W. R.R. Co., No. 1075, 3 R.L.B. 539 (1922); Ry. Employees’ Dept.
v. Chicago Great W. R.R. Co., No. 1076, 3 R.L.B. 540 (1922); Ry.
Employees’ Dept. v. St. Louis Brownsville & Mexico Ry. Co., No.
1078, 3 R.L.B. 544 (1922); Maint. of Way Employees v. Indiana
Harbor Belt R.R. Co., No. 1079, 3 R.L.B. 545 (1922); Ry. Employees’ Dept. v. MKT Ry. Co., No. 1080, 3 R.L.B. 548 (1922); Bhd. of
Ry. & S.S. Clerks v. Cleveland, Cincinnati, Chicago & St. Louis
Ry. Co., No. 1119, 3 R.L.B. 594 (1922); Bhd. of Ry. & S.S. Clerks
v. N.Y. Central R.R. Co., No. 1209, 3 R.L.B. 665 (1922); Bhd. of
Ry. & S.S. Clerks v. Erie R.R. Co., No. 1210, 3 R.L.B. 667 (1922);
Maint. of Way Employees v. San Antonio, Uvalde & Gulf R.R., No.
1212, 3 R.L.B. 670 (1922); Firemen & Oilers v. Great N. Ry. Co.,
No. 1213, 3 R.L.B. 673 (1922); Ry. Employees’ Dept. v. Erie R.R.
Co., No. 1214, 3 R.L.B. 675 (1922); Maint. of Way v. Chicago &
N.W. Ry. Co., No. 1215, 3 R.L.B. 678 (1922); Ry. Employees’ Dept.
v. N.Y Central R.R. Co., No. 1216, 3 R.L.B. 679 (1922); Am. Fed’n
of R.R. Workers v. N.Y. Central R.R. Co., No. 1217, 3 R.L.B. 682
(1922); Maint. of Way Employees v. Erie R.R. Co., No. 1218, 3
R.L.B. 683 (1922); Am. Fed’n of R.R. Workers v. Erie R.R. Co., No.
1219, 3 R.L.B. 686 (1922); Am. Fed’n of R.R. Workers v. N.Y. Central R.R. Co., No. 1220, 3 R.L.B. 687 (1922); Maint. of Way Employees v. Chicago Milwaukee & St. Paul Ry., No. 1222, 3 R.L.B.
689 (1922); Bhd. of Locomotive Eng’rs v. Cincinnati Indianapolis
& W. R.R. Co., No. 1224, 3 R.L.B. 690 (1922); Ry. Employees Dept.
v. Chicago Great W. R.R. Co., No. 1225, 3 R.L.B. 692 (1922);
Maint. of Way Employees v. Chicago Great W. R.R. Co., No. 1226,
3 R.L.B. 696 (1922); Maint. of Way Employees v. St. Louis-San
Francisco Ry. Co., No. 1230, 3 R.L.B. 700 (1922); Maint. of Way
Employees v. St. Louis San Francisco Ry. Co., No. 1231, 3 R.L.B.
702 (1922); Bhd. of Ry. & S.S. Clerks v. N.Y. Central R.R. Co., No.
1232, 3 R.L.B. 705 (1922); Ry. Employees’ Dept. v. Indiana Harbor
Belt R.R. Co., No. 1235, 3 R.L.B. 709 (1922); Ry. Employees’ Dept.
v. Erie R.R. Co., No. 1241, 3 R.L.B. 727 (1922); Maint. of Way
Employees v. Chicago & Alton R.R. Co., No. 1254, 3 R.L.B. 741
(1922); Ry. Employees’ Dept. v. Michigan Central R.R. Co., No.
1255, 3 R.L.B. 745 (1922); Maint. of Way Employees v. Chicago,
Rock Island, & Pac. Ry., No. 1256, 3 R.L.B. 747 (1922); Ry. Em-
21
work was considered part of interstate transportation
depended on its function, not the contractual arrangements a railroad may have used to secure it.
A dozen years after the FAA’s enactment, this Court
adopted precisely the same logic in finding that the
Railway Labor Act applied to a railroad’s repair-shop
workers, who performed their work as “independent
contractors.” Virginian Ry. Co. v. Sys. Fed’n No. 40,
300 U.S. 515, 557 (1937). This Court insisted that it is
“the nature of the work done and its relation to interstate transportation which afford adequate basis for
the exercise of the regulatory power of Congress.” Id.
Applying this logic here, Brock and other Flowers
delivery drivers are undoubtedly “engaged in . . . interstate commerce,” 9 U.S.C. § 1, by providing the necessary and customary work of transporting Flowers’s
baked goods from their origin in out-of-state bakeries
to their final destination at in-state retail stores, reployees’ Dept. v. Bangor & Aroostook R.R., No. 1257, 3 R.L.B. 750
(1922); Ry. Employees’ Dept. v. Cleveland, Cincinnati, Chicago &
St. Louis Ry. Co., No. 1259, 3 R.L.B. 752 (1922); Ry. Employees’
Dept. v. Pere Marquette Ry. Co., No. 1260, 3 R.L.B. 754 (1922);
Bhd. of Ry. & S.S. Clerks v. Cincinnati, Indianapolis & W. R.R.
Co., No. 1263, 3 R.L.B. 758 (1922); Ry. Employees’ Dept. v. Ann
Arbor R.R. Co., No. 1264, 3 R.L.B. 762 (1922); Ry. Employees’
Dept. v. Western Maryland Ry. Co., No. 1361, 3 R.L.B. 934 (1922);
Order of R.R. Telegraphers v. S. Pac. Co., No. 1634, 4 R.L.B. 139
(1923); Int’l Ass’n of R.R. Supervisors of Mechanics v. W. Maryland Ry. Co., No. 1888, 4 R.L.B. 491 (1923); Maint. of Way Employees v. W. Maryland Ry. Co., No. 1889, 4 R.L.B. 493 (1923);
Am. Fed’n of R.R. Workers v. Erie R.R. Co., No. 1963, 4 R.L.B. 616
(1923); Maint. of Way Employees v. Erie R.R. Co., No. 2054, 4
R.L.B. 788 (1923); Maint. of Way Employees & Ry. Shop Laborers
v. Chicago & N. W. Ry. Co., No. 2173, 5 R.L.B. 174 (1924); Maint.
of Way Employees v. Missouri-Kansas-Texas Lines, No. 2207, 5
R.L.B. 213 (1924); Bhd. of Ry. & S.S. Clerks v. Delaware, Lackawanna & W. R.R. Co., No. 3905, 6 R.L.B. 1248 (1925).
22
gardless of whether they do so as direct Flowers employees or their contractors.
II. The Court’s FAA precedents overlook
decisive evidence that, as originally
understood, § 1 exempted all employment
contracts, and the Court should not now
compound its mistake through an unduly
constrained construction of transportation.
1. The FAA’s session law contains a marginal note summarizing § 1’s final sentence. The note reads: “Not applicable to employment contracts of workers.” FAA, Pub.
L. 68-401, 43 Stat. 883, 883 (1925). That note provides
indisputable evidence of § 1’s original, public meaning.
Session laws, as they appear printed in the Statutes
at Large, “shall be” and are “legal evidence of the laws
and treaties therein contained, in all the courts of the
United States . . . .” An act providing for publication of
the revised statutes and the laws of the United States
(Publication Act), ch. 333, §§ 7–8, 18 Stat. 113, 114
(1874). Accord 1 U.S.C. § 112 (“The United States
Statutes at Large shall be legal evidence of laws . . .,
in all the courts of the United States . . . .”).
The 1874 Publication Act charged the Secretary of
State with the responsibility of compiling session laws
at the close of every session of Congress. Publication
Act, § 6, 18 Stat. 113. He had that responsibility until
1950, when Congress transferred it to the Office of the
Federal Register, National and Records Administration (formerly known as the National Archives and
Records Service). See Reorganization Plan No. 20 of
1950, 64 Stat. 1272.12
12 The United States Code, published by the Government
Printing Office under the auspices of the Office of the Law Revision Counsel, did not exist until 1926—after the FAA’s enact-
23
During the period of Secretary of State publication,
1874–1950, the Statutes at Large had to “carry marginal notes indicating the subject-matter of the instruments which the notes accompany”—and the Secretary conducted a “long, painstaking, demanding”
process to “make certain that no errors have crept in”
to the printed session laws. E. Wilder Spaulding, Law
Publications of the Department of State, 3 Dep’t St.
Bull. 301, 304 (1940). Indeed, the Secretary ensured
that the Statutes at Large, including their marginal
notes, were “as nearly perfect as editor and printer
can make them for they are legal evidence of the laws
in the courts of the United States . . . .” Id.
It is this process that led to § 1’s marginal note, describing the FAA’s coverage as “[n]ot applicable to employment contracts of workers.” FAA, Pub. L. 68-401,
§ 1 (marginal note), 43 Stat. 883, 883 (1925).
2. Reasonable jurists may disagree as to whether the
1874 Publication Act and its successors (including its
partial codification in 1 U.S.C. § 112) make the marginal note to § 1 itself law. Certainly, the 1874 Publication Act and its successors provide, by law, that the
Statutes at Large—including all their contents—are
“legal evidence” of federal law in American courts.
Regardless, there can be no disagreement that the
Secretary of State drafted and published the marginal
note to § 1, as it appears in the Statutes at Large, at the
close of the 1925 session of Congress, making every effort possible to produce an error-free, perfect publication reflecting the laws Congress had passed that year.
At the very least, § 1’s marginal note reflects the
Secretary’s understanding of the scope of § 1’s exemption—an understanding that he communicated, by
ment. Act of June 30, 1926, ch. 713, 44 Stat. 778.
24
law, publicly to every reader looking for legal evidence
of federal laws.
There are few pieces of evidence of original public
meaning as compelling as this one. Often, when seeking original public meaning, the Court must comb historical dictionaries, ratification debates, public discussions, contemporary treatises, and the like for
circumstantial evidence of a provision’s historical,
public meaning. Not so here. Here, we have direct evidence of the original construction of § 1 by the sole
officer charged by law with preparing sessions laws
for publication, and we have it in a form that is communicated, by law, to every reader looking for evidence of the law’s meaning.
That evidence should be decisive that the FAA exempts all “employment contracts of workers,” not
merely agreements with transportation workers, as
this Court held in Circuit City, 532 U.S. at 109. Indeed, “the contemporary and consistent views of a coordinate branch of government can provide evidence
of the law’s meaning.” Bondi v. VanDerStok, 604 U.S.
458, 481 (2025) (quoting Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394 (2004). Here, the Secretary
of State has never sought to revise the marginal note
originally published in the 1925 Statutes at Large.
And 75 years later, when the question was first before
this Court, the United States maintained its position
that the FAA exempts all employment contracts. See
Br. of U.S., Circuit City Stores, Inc. v. Adams, No. 991379 (2000). Section 1’s marginal note is thus entitled
to at least as much weight as evidence of statutory
meaning as section headings. See Rudisill v. McDonough, 601 U.S. 294, 309 (2024) (section headings
provide evidence of statute’s meaning); Dubin v. United States, 599 U.S. 110, 121 (2023) (same).
25
When this Court construed § 1 to exempt only arbitral agreements with transportation workers, not all
employment contracts, none of the Court’s opinions
cited the FAA’s session law, let alone § 1’s marginal
note. Cf., Circuit City, 532 U.S. at 109–40. To be fair,
neither did the parties. Cf., Br. of Circuit City, Circuit
City Stores, Inc. v. Adams, No. 99-1379, at x–xi (2000);
Br. of Adams, Circuit City Stores, Inc. v. Adams, No.
99-1379, at vi–ix (2000); Reply Br. of Circuit City, Circuit City Stores, Inc. v. Adams, No. 99-1379, at iii–v
(2000). And the United States cited the session law
only to refer to the date of its enactment, not to make
any substantive argument regarding its contents. Br.
of U.S., Circuit City Stores, Inc. v. Adams, No. 991379, at 2, 6 (2000). No one brought § 1’s marginal
note to the Court’s attention, so the Court can hardly
be faulted for overlooking its significance.
Still, with the session law now plainly in view, it
must be admitted that the Court’s initial encounter
with the scope of § 1’s exemption overlooked decisive
evidence of the provision’s original public meaning.
3. We nonetheless recognize that stare decisis has added force in the field of statutory interpretation. See, e.g.,
Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015).
Certainly, none of the parties has asked this Court to
overturn Circuit City, and neither do we in this case.
Accounting now for the clear evidence that § 1 was
originally understood by the public to exempt all employment contracts, this Court, at least, should not
compound its earlier error by giving an unduly narrow
interpretation to the concept of “transportation worker” that it superimposed on the statute in Circuit City.
After all, absent any express indication that courts
should construe exemptions narrowly (and, in the face
of § 1’s Statutes at Large marginal note, there is no
such indication here), this Court gives exemptions a
26
“fair reading,” not a broad or narrow one. Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 88–90 (2018)
(citing A. Scalia & B. Garner, Reading Law 363 (2012)).
As shown above, for two centuries now, from Gibbons through today, this Court has properly understood local delivery of goods to constitute part of interstate transportation where the goods embark on a
continuous interstate journey and the parties to the
journey have an original, persistent intent to send the
goods from one state to another. Reading § 1 fairly,
the Court should reject petitioner’s request to retreat
from its longstanding approach to interstate transportation that includes local segments.
CONCLUSION
For these reasons, the Court should affirm the judgment below.
Respectfully submitted,
/s/ Darin M. Dalmat
MaTThew J. gInsBurg
darIn M. dalmaT
Counsel of Record
Hannah cohen SmITh*
AFL-CIO
815 16th St., N.W.
Washington, DC 20006
202-637-5021
ddalmat@aflcio.org
Counsel for American Federation
of Labor and Congress of
Industrial Organizations
*Admitted in ME only. Practice
supervised by D.C. Bar members.
January 21, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.