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.

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