Amicus Curiae Brief — Circuit City Stores, Inc. v. Adams

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IN THE )

Supreme Court of the Hnijted States as

OCTOBER TERM, 2000

CIRCUIT CITY STORES, INC..,

Petitioner,

SAINT CLAIR ADAMS,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

AMICUS CURIAE BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENT

FREDERICK M. BARON JEFFREY ROBERT WHITE*

1050 31st St., N.W. 1050 31st. St., N.W.

Washington, DC 20007 Washington, DC 20007

(202) 965-3500 (202) 965-3500

President, * Counsel of Record

The Association of

Trial Lawyers of America | ERIC SCHNAPPER

University of Washington

School of Law

1100 N.E. Campus Way

Seattle, WA 98105

(206) 616-3167

Attorneys for Amicus Curiae

BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

IDENTITY AND INTEREST OF AMICUS CURIAE........ 1

SUMMARY OF THE ARGUMENT 2

ARGUMENT

THE EXEMPTION IN SECTION 1 OF THE FEDERAL

ARBITRATION ACT APPLIES, AT THE LEAST, TO

EMPLOYEES OF FIRMS THAT ENGAGE IN THE

PRODUCTION, TRANSPORTATION OR

DISTRIBUTION OF GOODS OR SERVICES IN

INTERSTATE MARKETS 4

I. THE PHRASE "ENGAGED IN COMMERCE" IS

GENERALLY UNDERSTOOD TO ENCOMPASS

THE PRODUCTION AND DISTRIBUTION AS

WELL AS THE TRANSPORTATION OF GOODS

OR SERVICES IN AN INTERSTATE MARKET........ 5

Il. THE RULES OF STATUTORY CONSTRUCTION

DO NOT WARRANT A NARROWER

CONSTRUCTION OF SECTION 1 9

Ill. CONGRESS DID NOT INTEND THE FAA TO

DEPRIVE A BROAD CATEGORY OF WORKERS

OF THE RIGHT TO TRIAL BY JURY. 16

CONCLUSION ..... 19

il

APPENDIX A

FEDERAL STATUTES LIMITED TO PERSONS

ENGAGED IN COMMERCE ...ssssssssssssssssssssssssesseeeeeces App. 1

APPENDIX B

FEDERAL STATUTES EXPRESSLY LIMITED TO

INTERSTATE TRANSPORTATION OF PERSONS OR

GOODS —_o__cnassssssssssssssssscsesssssseesesnsensensssscsscssssssnnensenes App. 3

TABLE OF AUTHORITIES

CASES

AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999)......... 10

Babbit v. Sweet Home Chapter of Communities for a Great

A 10

Bailey v. Central Vermont Ry., 319 U.S. 350 (1943)........... 18

Blumenstock Bros. Advertising Agency v. Curtis Pub. Co.,

acinar cance ttenterenenrtinmensncees 11

Camps Newfound/Owatonna, Inc. v. Town of Harrison,

Sa TTT necesita tnnetnnsnsnbentennnnndanccsente 7

Craft v. Campbell Soup Co., 177 F.3d 1083

ee 4,11

Dice v. Akron, Canton & Youngstown R. Co.,

ls nears etrcteecatccnstns 18

Federal Maritime Board v. Isbrandtsen Co.,

Ta ee 10

Federal Trade Commission v. American Tobacco Co.,

a a 7

Federal Trade Commission v. Curtis Pub. Co.,

Finca tert elineaenateaescennnennnte 7

Federal Trade Commission v. Sinclair Refining Co,

canals ancecetincnntcesnts 3,7

Garcia v. United States, 469 U.S. 70 (1984) ........cccccccccceeeees ll

Gooch v. United States, 297 U.S. 125 (1936)..........ccccccceeeeees ll

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974)....... 6

Harrison v. PPG Industries, Inc.,

TT tr iereseernterencenmnneneneenensens 3, 10, 11, 12, 16

Holder v. Hall, 512 U.S. 874 (1994) ...........cccccccccecesseseeeeeeeees 10

Hughey v. United States, 495 U.S. 411 (1990)................ 10, 11

Illinois Cent. R.R. Co. v. Behrens, 233 U.S. 473 (1914).......... 9

King v. United States, 379 U.S. 329 (1964) .0......ccccccccceeeeeees 10

Mondou v. New York, N. H. & H. R.R. Co.,

EET eee 17

Norfolk and Western Railway Co. v. American Train

Dispatchers’ Ass'n, 499 U.S. 117 (1991) ......ccccccceeees 10, 12

IV

P.U.D. No. | of Jefferson County v. Washington Department

of Ecology, 511 U.S. 700 (1994)........csssssveseseseenenensnensenes 10

Peretz v. United States, 501 U.S. 923 (1991) ........cccecceeeeeeeeees 10

Shanks v. Del. Lackawanna, & W.R.R. Co., 239 U.S. 556

(1916) ....ccccecseseoseseseseresssossescssosensscscessorensessnesssosesssossssssosesses y

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992)....6

United Shoe Machinery Corp. v. United States, 258 U.S. 451

(1.922) .....ccecsccsoscrsisersseessecssossosecsessscssssononsossossesosooosonsssnseesees 7

United States v. Alpers, 338 U.S. 680 (1950)............000000 10, 11

United States v. American Bldg. Maint. Industries,

422. U.S. 271 (19TS) ..ecccerccsecereccssscrsscccssessecsesessosersssssssess 3, 6

United States v. District Court, 401 U.S. 520 (1971)............. 10

United States v. Feola, 420 U.S. 671 (1975)......ccccceeeeeeeneenees 10

United States v. Powell, 423 U.S. 87 (1975) ......cccseecereeeeeenees 11

United States v. Robertson, 514 U.S. 669 (1995).........cceceeeeees 6

United States v. Standard Oil, 384 U.S. 224 (1966)............-+. 10

United States v. Turkette, 452 U.S. 576 (1981)...........0+++ 10, 11

United States v. Wells, 519 U.S. 482 (1997) ......cccccceseceeeeeeees 10

United States v. Wiesenfeld Warehouse Co., 376 U.S. 86

| _ eea 10

West v. Gibson, 527 U.S. 212 (1999) .....ccccccccceeseeeeeeeeeeeeneeees 10

STATUTES

9 U.S.C. § 1 (Federal Arbitration Act) .............scseseeees passim

15 U.S.C. §§13-18a (Clayton Act)..........cccccccseeeeeneeeeeees 5, 6,7

15 U.S.C. §§13-27 (Robinson-Patman Act).............0ee 5,6

15 U.S.C. §1127 (Lamha Act) .........:ccccceeeseeeeeeeeneneenesnnnenenes 6

15 U.S.C.A. § 41 et seq. (Federal Trade Commission Act)......7

45 U.S.C. § 51 et seq., 35 Stat. 65 (FELA) ..........-.-000000 8,9, 17

17 Beat. 2G2, BET § BE ...cccecccecorescsccccsccssccsscrscossosscossssessnsscsoeses 17

3B Beat. 163, 105 § 40S) ....cccccccserccccccccssccssserscecsncscccssescsscssesoees 17

OTHER AUTHORITIES

N. Singer, SUTHERLAND ON STATUTORY CONSTRUCTION (6th

CO, FID vececccecscsscsssecesscccessencessecnrssnsesanssessssssensnsesnssonesassonss 16

IN THE

Supreme Court of the United States

No. 99-1379

CiRCUIT CITY STORES, INC.,

Petitioner,

v.

SAINT CLAIR ADAMS,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

AMICUS CURIAE BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE PETITIONER

IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of Trial Lawyers of America

(“ATLA”) respectfully submits this brief as amicus curiae in

this case. Letters from Petitioner and Respondent granting

consent to the filing of this brief have been filed with this

Court.!

' Pursuant to Rule 37.6, Amicus discloses that no counsel for a party

authored any part of this brief, nor did any person or entity other than

Amicus Curiae, its members, or its counsel make a monetary contribution

to the preparation or submission of this brief.

2

ATLA is a voluntary national bar association whose

approximately 50,000 trial lawyers primarily represent

individual plaintiffs in civil actions, including employees

seeking to vindicate their rights against discrimination in the

workplace under federal and state civil rights statutes.

In ATLA’s view, arbitration of existing claims may

offer an effective and efficient means of dispute resolution

for both employee and employer. Such _post-dispute

agreements to arbitrate depend upon a knowing and

voluntary waiver of the right of access to the courts and the

right to a trial by jury.

By demanding as a condition of employment that the

employee prospectively waive these rights prior to any

dispute, however, employers undermine both _ the

constitutional and statutory rights of employees. The plain

text of the Federal Arbitration Act indicates that Congress did

not intend such a result.

SUMMARY OF THE ARGUMENT

The decision of the Ninth Circuit can be affirmed on a

ground substantially narrower than that relied on by the court

of appeals. It is not necessary in this case to decide whether the

exemption in section | of the Federal Arbitration Act applies to

all employees. At the least the phrase “engaged in. . .

interstate commerce” is as broad as its usual meaning, which

encompasses the entire stream of interstate commerce, from

the production of goods and services for that commerce

through their final distribution.

The phrase “engaged in commerce” is used in a large

number of federal statutes, and has been consistently

interpreted to include the stream of interstate commerce from

initial production through distribution. The Clayton Act,

originally adopted in 1914 and expressly limited to firms

engaged in commerce, has long been construed to apply to “the

flow of interstate commerce -- the practical, economic

3

continuity in the generation of goods and services for interstate

markets and their transport and distribution to the consumer.”

United States v. American Bldg. Maint. Industries, 422 U.S.

271, 276 (1975). Prior to the 1925 enactment of the Federal

Arbitration Act, this Court had repeatedly applied the Clayton

Act to defendants which were not part of the transportation

industry. E.g. Federal Trade Commission v. Sinclair Refining

Co., 261 U.S. 463 (1923).

' The principle of ejusdem generis is only invoked to

clarify the meaning of ambiguous language. Petitioner itself

describes the phrase “engaged in commerce’, when used in the

Robinson-Patman Act, as “clear language.”

Under ejusdem generis, if an enumeration is followed

by a general term, the only limitation which can be imposed on

the general term is some characteristic common to ail of the

items mentioned in the enumeration. Harrison v. PPG

Industries, Inc., 446 U.S. 578, 588 (1980). Petitioner urges that

“workers engaged in . . . commerce” should be limited to

workers who move goods between states, or to workers in a

transportation industry. But many seamen and railroad

employees would not meet that requirement. Seamen on

fishing boats, for example, are not in a transportation industry

and do not usually move goods from one state to another;

rather, they engage in interstate commerce by generating goods

that are later sold in an interstate market.

Petitioner Circuit City, a large national retailer of

electronics goods, is clearly “engaged in commerce” within the

meaning of the Clayton Act. The section 1 exemption of the

FAA extends to the “class” of all employees who work for

such an employer.

4

ARGUMENT

THE EXEMPTION IN SECTION 1 OF THE FEDERAL

ARBITRATION ACT APPLIES, AT THE LEAST, TO

EMPLOYEES OF FIRMS THAT ENGAGE IN THE

PRODUCTION, TRANSPORTATION OR

DISTRIBUTION OF GOODS OR SERVICES IN

INTERSTATE MARKETS

Both the Ninth Circuit and petitioner misapprehend the

nature of the question posed by this case, and by the terms of

section 1 of the Federal Arbitration Act. In the court of

appeals’ seminal decision in Craft v. Campbell Soup Co., 177

F.3d 1083 (9th Cir. 1999), it expressly assumed that the phrase

“workers engaged in foreign or interstate commerce” could

only have one of two possible meanings. That statutory

limitation, it asserted, either must include all employees or

must be narrowly limited to only those employees “who

actually transport people or goods in interstate commerce.”

177 F.3d at 1085. Petitioner also insists that these are the only

two possible interpretations of section 1. (Pet. Br. 22, 24).

There is, however, a third possibility -- that the phrase

“engaged in commerce” has its normal meaning, and

encompasses the production and distribution -- as well as the

transportation -- of any goods or services that pass through

interstate commerce. If the phrase has at least that scope, that is

sufficient to resolve the instant case.?

2 Such a resolution of the instant case would leave unresolved the

question of whether the section 1 exemption also applies to employees of

employers whose businesses merely affect interstate commerce.

5

I. THE PHRASE "ENGAGED IN COMMERCE" IS

GENERALLY UNDERSTOOD TO ENCOMPASS

THE PRODUCTION AND DISTRIBUTION AS

WELL AS THE TRANSPORTATION OF GOODS

OR SERVICES IN AN INTERSTATE MARKET

The exemption in section 1 of the Federal Arbitration

Act applies to any “class of workers engaged in foreign or

interstate commerce.” The phrase “engaged in commerce” is a

common one in federal statutes; several dozen other federal

laws, some of which had been enacted prior to the Federal

Arbitration Act in 1925, use identical language. See Appendix

A. There are hundreds of federal statutes using the phrase “in

commerce”, including a number of criminal provisions.’

Neither “engaged in commerce” nor “in commerce” has been

generally understood, in these other federal statutes, to be

limited to the physical movement of goods or people in

interstate commerce; to the contrary, these laws have been

construed to apply to the entire stream of commerce, from the

production of goods or services which pass though interstate

channels until their distribution. Section 1 should be

interpreted at least that broadly.

The two most frequently applied statutes regarding

persons “engaged in commerce” are the Clayton Act, first

enacted in 1914, and the Robinson-Patman Act of 1936. Both

Statutes forbid a number of actual or potentially anti-

competitive practices, and both are limited in their application

to firms “engaged in” commerce. 15 U.S.C. §§13-18a

(Clayton Act); 15 U.S.C. §§13-27 (Robinson-Patman Act).

Both statutes have uniformly been understood to apply to any

firm engaged in interstate transactions, not merely to those

companies which are involved in the actual transportation of

goods or people.

3 Petitioner correctly notes that the phrases “engaged in

commerce” and “in commerce” have generally been given the same

construction. (Pet. Br. 14, 15 n.6).

6

In United States v. American Bldg. Maint. Industries,

422 U.S. 271 (1975), this Court reiterated the long established

understanding that the Clayton Act applies to “the flow of

interstate commerce -- the practical, economic continuity in the

generation of goods and services for interstate markets and

their transport and distribution fo the consumer.” 422 U.S. at

276 quoting Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186,

195 (1974\Emphasis added). The actual interstate

transportation of goods is only a small portion of the range of

activities covered by the Clayton Act. Among the numerous

applications of the Act by this Court and lower courts, the

amount of litigation by or against transportation companies is

insignificant.

The Robinson-Patman Act, also limited to businesses

engaged in commerce, has been construed in the same manner.

Gulf Oil Corp. v. Copp Paving Co., 419 US. at 195.

Petitioner itself describes Gulf Oil as reflecting “four decades

of near-uniform appellate law reading ‘engaged in commerce’”

and as reiterating a construction that was “according to its

ordinary . .. meaning.” (Pet. Br. 31.)

This Court has applied other similarly phrased statutes

in the same manner. The Lanham Act was expressly adopted

“to protect persons engaged in commerce against unfair

competition.” 15 U.S.C. §1127. This Court applied that

statute to a trade dress dispute between competing Texas fast

food restaurant chains in Two Pesos, Inc. v. Taco Cabana, Inc.,

505 U.S. 763 (1992). Similarly, in United States v. Robertson,

514 U.S. 669 (1995), the Court concluded that the defendant

had “engaged in commerce,” and thus was subject to the

prohibitions of RICO, because he had purchased equipment for

a mine from out of state sources. 514 U.S. at 671.

In 1925, when the Federal Arbitration Act was

adopted, this interpretation of “engaged in commerce” was so

well established that its routine application drew little

comment. Prior to that year this Court had applied to firms

that engaged in interstate sales (but did not operate interstate

—— rr. cll et

— —ee eee ee

:

transportation systems) both the Clayton Act and a provision

of the Federal Trade Commission Act authorizing

investigations of firms “engaged in commerce.” Federal

Trade Commission v. American Tobacco Co., 264 U.S. 298

(1924)(Federal Trade Commission Act); Federal Trade

Commission v. Sinclair Refining Co, 261 US. 463

(1923)(Clayton Act); Federal Trade Commission v. Curtis

Pub. Co., 260 U.S. 568 (1923)(Clayton Act); United Shoe

Machinery Corp. v. United States, 258 US. 45]

(1922)(Clayton Act).

The other federal laws whose application is limited to

persons engaged in commerce cover a wide range of subjects,

including securities, credit practices, electronic funds transfers,

gifts to federal officials, transfers of energy technology, and

limitations on foreign acquisitions of American firms. See

Appendix A. The variety of the hundreds of federal statutes

regarding firms or actions “in commerce” is virtually

unlimited. Petitioner does not seriously suggest that all, or

any, of these laws have been, or should now be, interpreted to

apply only to the actual operation between states of trains,

airplanes, trucks and boats.

This Court has generally used the phrase “engaged in

commerce” in this manner. For example, in Camps

Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564,

573 (1997), the Court observed, “Even though petitioner's

camp does not make a profit, it unquestionably engaged in

commerce, not only as a purchaser, . . . but also as a provider

of goods and services.” 520 U.S. at 573.

Had Congress wanted to limit the exemption in section

1 of the FAA to employees of transportation firms, it certainly

would have done so specifically. As we set out in Appendix

B, Congress has expressly framed a large number of statutes to

apply only to interstate “transportation” or only to “common

carriers” engaged in commerce. Respondent urges that section

1 be construed as if it read “workers engaged in interstate

transportation” or “employees of common carriers engaged in

8

interstate commerce.” But Congress, which has repeatedly

utilized just such terminology, deliberately chose not to do so

here.

Petitioner relies on a series of pre-1925 decisions of

this Court which limited the application of the Federal

Employers Liability Act to employees whose interstate

activities involved the transportation of goods and people.

(Pet. Br. 18). Petitioner suggests that the limitation of the

FELA to transportation activities grew out of an interpretation

of the phrase “engaged in commerce” in the FELA. (Pet. Br.

18, 21). That is clearly incorrect. The FELA contained an

express limitation that confined its reach to transportation; it

applied only to “common carrier[s} by railroad.” 35 Stat. 65.

The FELA was inapplicable to other types of interstate

commercial activity because of this restrictive language, not

because this Court believed that “engaged in interstate

commerce” meant “engaged in interstate transportation.” This

Court's pre-1925 application of the Clayton Act makes clear its

understanding, and that of Congress, that the phrase “engaged

in commerce” was not limited in this manner.

Petitioner Circuit City is unquestionably engaged in

commerce. It operates 518 stores throughout the United

States, and sells goods directly on its website.

(www.circuitcity.com). Circuit City buys from manufacturers

and wholesalers throughout the nation, and certainly receives

and distributes most of its goods across state lines. Many of

the electronic items sold by petitioner were undoubtedly

manufactured, in whole or in part, in foreign countries. In any

one state, even California, only a small fraction of the goods

sold by a given store will have been made within that state.

There is no question that Circuit City itself would, for these

reasons, be subject, for example, to the provisions of the

Clayton Act, the Robinson-Patman Act, and other laws

applicable only to firms engaged in interstate commerce.

Employees of a firm engaged in interstate commerce

are ipso facto within the scope of the exemption in section | of

9

the F AA. The statute neither authorizes nor contemplates

re gn evaluations of the particular duties of each

specific worker. In this regard it differs ly, and

deliberately, from the FELA, which applied agg er

worker only “while he is employed by such carrier in such

commerce.” 35 Stat. 65 (Emphasis added). Under the FELA,

coverage of an employee could literally vary from moment to

moment, depending on what task a worker was doing. E£.g.

Shanks v. Del. Lackawanna, & W.R.R. Co., 239 US. 556, 558

(1916); Illinois Cent. R.R. Co. v. Behrens, 233 US. 473, 478

(1914). Section 1 of the FAA, on the other hand, turns neither

on @ worker’s tasks at any point in time, nor on an

individualized assessment of the overall duties of the particular

worker in question. Rather, the Statutory test is whether the

“class of workers” to which an employee belongs engages in

commerce. The first illustration provided by the statute of a

“class of workers” is “railroad employees”, a phrase that would

encompass all the employees of a railroad engaged in

commerce. Similarly, where any other employer is engaged in

commerce, as that phrase is generally understood, all of its

workers fall within the scope of the section 1 exemption.

Il. THE RULES OF STATUTORY CONSTRUCTION

DO NOT WARRANT A NARROWER

CONSTRUCTION OF SECTION 1

Petitioner expressly insists, as it must, that the section 1

exemption does not apply to “all workers “engaged in interstate

or foreign commerce’.” (Pet. Br. 23). It contends, rather, that

rules of statutory construction compel the conclusion that

Congress actually meant to depart from the normal meaning of

“engaged in commerce” and to exclude from the exemption the

vast majority of workers engaged in interstate commerce. No

principles of interpretation, however, require such an

extraordinary limitation.

10

Petitioner’s argument misapprehends the scope and

force of the ejusdem generis doctrine. Petitioner believes that

in every case in which a general term is preceded by a more

specific list, the list must be deemed to contain a covert

limitation of some sort, and that the general term can never be

given its ordinary meaning. (Pet. Br. 8, 23 n. 11). That is not

the law.

This Court has never applied ejusdem generis in this

extreme or mechanical manner. To the contrary, since 1950

this Court has in fact rejected arguments based on ejusdem

generis in virtually very case in which they have been raised.‘

4 West v. Gibson, 527 U.S. 212, 225 (1999) (ejusdem generis

invoked in dissenting opinion); AT&T Corp. v. Iowa Utilities Bd., 525 U.S.

366, 408 (1999) (ejusdem generis invoked in dissenting opinion); United

States v. Wells, 519 U.S. 482, 490 n.9 (1997) (ejusdem generis argument

rejected in majority opinion); id. at 512 (ejusdem generis invoked in

dissenting opinion); Babbit v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687, 720 (1995) (ejusdem generis invoked in

dissenting opinion); Holder v. Hall, 512 U.S. 874, 917 (1994) (ejusdem

genens invoked in concurring opinion regarding an interpretation of the

statute not accepted by majority); P.U.D. No. | of Jefferson County v.

Washington Department of Ecology, 511 U.S. 700, 727-28 (1994) (ejusdem

generis invoked in dissenting opinion); Peretz v. United States, 501 U.S.

923, 955 (1991) (ejusdem generis invoked in dissenting opinion); Norfolk

and Western Railway Co. v. American Train Dispatchers’ Ass'n, 499 U.S.

117, 129 (1991) (ejusdem generis argument rejected by majority opinion);

id. at 136 (ejusdem generis invoked by dissenting opinion); United States v.

Turkette, 452 U.S. 576, 581 (1981); Harrison v. PPG Industries, Inc., 446

U.S. 578, 588 (1980); United States v. Powell, 423 U.S. 87, 91 (1975);

United States v. Feola, 420 U.S. 671, 708 (1975) (dissenting opinion);

United States v. District Court, 401 U.S. 520, 524 (1971); United States v.

Standard Oil, 384 U.S. 224, 228 (1966); King v. United States, 379 U.S.

329, 336-37 (1964); United States v. Wiesenfeld Warehouse Co., 376 U.S.

86, 88 (1964); Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481,

495 n. 15 (1958); United States v. Alpers, 338 U.S. 680, 683 (1950).

The only decision of this Court in the last fifty years which relied

on ejusdem generis to limit the meaning of a general term appears to be

Hughey v. United States, 495 U.S. 411, 418 (1990).

11

This Court’s decisions recognize that when Congress uses a

general term preceded by a more specific list, it often means to

do no more than recite common or important examples of the

types of things which were indeed within the ordinary meaning

of that general term.

This Court has repeatedly held that ejusdem generis

cannot be invoked unless the general term at issue is inherently

ambiguous. “The rule of ejusdem generis . . . is only an

instrumentality for ascertaining the correct meaning of a word

when there is uncertainty.” Harrison v. PPG Industries, Inc.,

446 U.S. 578, 588 (1980), quoting United States v. Powell, 423

U.S. 87, 91 (1975), quoting Gooch v. United States, 297 U.S.

125, 128 (1936).5 In Hughey v. United States, 495 U.S. 411,

417 (1990), one of the few actual applications of ejusdem

generis, the statute in question authorized consideration in

restitution orders of certain specified considerations and “such

other factors as the court deems appropriate.”6 Petitioner does

not suggest that the phrase “engaged in commerce” is

inherently ambiguous.’ To the contrary, petitioner describes

5 Garcia v. United States, 469 U.S. 70, 74 (1984); United States v.

Turkette, 452 U.S. 576, 581 (1981); United States v. Alpers, 338 U.S. 680,

683 (1950).

| © Petitioner cites as the paradigm of a case calling for application

of ejusdem generis an enumeration followed by the phrase “and other

things.” (Pet. Br. 20 n. 10).

7 Quite arguably the phrase may be ambiguous in the sense that it

may refer to more than just the production, movement, and distribution of

goods in interstate commerce. Craft v. Campbell Soup Co., 177 F. 3d 1083,

1085 (9th Cir. 1999). In the era when the Federal Arbitration Act was

adopted, even this Court used the phrase “engaged in commerce” as if it

were the same as involving or affecting commerce. E.g. Blumenstock Bros.

Advertising Agency v. Curtis Pub. Co., 252 U.S. 436 (1920). But the

possibility that “engaged in commerce” might have such a broader meaning

cannot justify utilizing ejusdem generis to give the phrase a narrower

meaning.

12

the phrase “engaged in interstate commerce”, when utilized in

the Robinson-Patman Act, as “clear language.” (Pet. Br. 31).

If it were indeed unclear whether “engaged in commerce” or

“in commerce” referred to anything other than the actual

transportation of goods and people between states, that would

raise serious constitutional problems for the numerous criminal

provisions that utilize those phrases.

This Court has also observed that the use of ejusdem

generis is particularly inappropriate where the general term in

question is preceded by the adjective “any”. In Harrison v.

PPG Industries, Inc., 446 U.S. 578 (1980), this Court rejected

the contention that “any other final action” by an agency

referred only to final action after notice and an opportunity for

a hearing.

When Congress amended the provision in

1977, it expanded its ambit to include not only

“other final action,” but “any other final

action.” This expansive language offers no

indication that Congress intended the limiting

construction . . . that the respondents now urge.

Harrison v. PPG Industries, Inc., 446 at 588-89 (Emphasis in

original). The exemption in section 1 of the FAA applies to

“any other class of workers engaged in foreign or interstate

commerce.” (Emphasis added). See Norfolk & Western R. Co.

v. Train Dispatchers, 499 U.S. 117, 129 (1991)(general phrase

referring to “all other law” (emphasis added) “means what it

says.”’)

Any application of ejusdem generis must, at the least,

meet one essential requirement--any restriction deemed to

derive from the enumeration must, of course, be satisfied by

every item in the enumeration itself. As petitioner itself

recognizes, the limitation has to be some element “common”

to every situation encompassed by the enumeration. In

13

Harrison v. PPG Industries, Inc., for example, the respondent

sought to read into the general phrase “final action” a

requirement that that action have been preceded by notice and

an opportunity for a hearing. In rejecting that contention, this

Court explained:

The flaw in this argument is that at least one of

the specifically enumerated provisions . . . does

not require the Administrator to act only after

notice and opportunity for hearing. . . . Thus,

even if the rule of ejusdem generis were

applied, it would not significantly narrow the

ambit of “any other final action” . . .

446 U.S. at 589.

Petitioner offers two formulations of the restriction

which it seeks to draw from the enumeration in section | of the

FAA -- (1) persons “who are actually engaged in the

movement of goods in interstate commerce” (Pet. Br. 21), or

(2) workers “involved in a transportation industry.” (Pet. Br.

24). There are, however, numerous instances in which

employees within the enumeration--seamen and railroad

employees--would not satisfy one or both of the proposed

alternative tests.

There are several categories of seamen who fall outside

both proposed limitations. The most obvious is seamen on

fishing boats. These boats do not ordinarily travel between

States; they leave a home port, catch fish in inland waters or on

the high seas, and then return to the state where they

onginated. Fishing is obviously not a transportation industry.

Yet most of these enterprises are engaged in commerce,

because they are catching fish to be sold in an interstate

market. Seamen on these boats are like workers in a mine or a

car factory. Similarly, there are seamen who work on

exploration activities for oil companies who would not meet

14

either of petitioner's proposed standards.* Many of these

seamen are members of the Seafarers International Union, the

original proponent of the section | exemption. There are some

railroad workers who would not meet either proposed

standard.°

A requirement that workers actually move goods or

people between states would delineate a factor not common to

additional railroad employees. Most employees of interstate

railroads engage in commerce without ever personally moving

goods or people; some purchase (or resell) in interstate markets

fuel or rolling stock (which may or may not be used in the

railroad’s interstate activities), manage the railroad’s funds or

other investments, sell coal from the company’s mines,

purchase in interstate markets items, such as food, for resale to

(interstate or intrastate) travelers, or license the name of the

railroad for use on toys or other items. Similarly, purely

intrastate railroads engage in commerce by doing many of

these same things. Thus the Long Island Railroad engages in

interstate commerce when it she buys diesel fuel from a New

Jersey refinery, or purchases from the Hershey Company in

Pennsylvania candy to be resold to commuters.

Similarly, the proposed alternative requirement of

involvement in “the transportation industry” would exclude

still more seamen. Many oil companies own their own fleets

of tankers; some mining companies operate their own ships

8 Seamen run the boats which explore for offshore oil and that

ice offel ‘rilling platforms. fst irilli ‘ally in

deep waters, is done from boats rather than platforms anchored on the

seabed.

9 Some logging companies have built their own intrastate railroads

to move timber from logging areas to the company’s mills. A number of

mining companies built and operate rail lines to move coal or other

minerals from a mine head to a processing plant. These activities are in

interstate commerce because they produce goods for sale in interstate

markets.

15

and barges to move minerals, particularly on the Great Lakes.

The seamen involved are in the oil or mining industries, not

the transportation industry. “Engaged in commerce” cannot be

subject to a limitation that would not reach, for example, the

captain and crew of the Exxon Valdez. And a requirement of

involvement in the transportation industry would exclude some

workers who do in fact move goods across state lines, the

driver of a HomeGrocer.com or Hecht Company truck making

a delivery from Washington, D.C., to the Maryland suburbs, a

diamond merchant bringing jewels from New York to

California, or a courier delivering securities or a work of art.

The rule proposed by petitioner would have any

number of strange consequences. If a consumer ordered over

the internet food that came from an out-of-state source, the

truck driver who delivered it would be within the exemption if

he or she worked for Federal Express, but not if he or she

worked for HomeGrocer.com. A worker who sold coal in

interstate commerce would be covered if employed by a

railroad, but not if by a coal company. If an Amtrak employee

in Pennsylvania bought diesel fuel from an Exxon employee in

Texas or electricity from Consolidated Edison employee in

New York, the buyer’s agent would be a “worker engaged in

interstate commerce” but the sellers’ agents would not.

The mechanical manner in which petitioner seeks to

apply ejusdem generis is inconsistent with the methodology

appropriate to that method of construction. When a general

term 1s preceded by an enumeration, application of ejusdem

generis requires considerable care in determining the

characteristic common to the items on the list with which the

legislature was concerned.

The doctrine of ejusdem generis calls for more

than merely an abstract exercise in semantics

subject to the act’s provisions by force of the

16

general reference. In most instances there is a

wide range of ways in which classes could be

defined, any one of which would embrace all of

the members in an enumeration. Germaneness

to the subject and purpose of the statute,

viewed in terms of legislative intent or meaning

to others, is the basis for determining which

among various semantically correct definitions

of the class should be given effect.

2A N. Singer, SUTHERLAND ON STATUTORY CONSTRUCTION

§47.18, p. 289 (6th ed. 2000). Far from articulating any

coherent purpose that would be served by exempting from the

FAA only workers who moved goods, or only workers in

transportation industries, but not other employees of firms

engaged in commerce, petitioner expressly disavows any

explanation. (Pet. Br. 26)(“Conjecture abounds”).

Ill. CONGRESS DID NOT INTEND THE FAA TO

DEPRIVE A BROAD CATEGORY OF WORKERS

OF THE RIGHT TO TRIAL BY JURY.

Petitioner suggests that Congress may have chosen to

exempt railroad workers and seamen because “federal

legislation already provided for arbitration of [their] grievances

_.., $0 that additional coverage by the FAA would be

redundant.” (Pet. Br. 26). The actual terms of that pre-FAA

legislation, however, instead support a very broad

interpretation of the exemption.

The critical change in the law worked by the FAA,

where it applied, was to render enforceable an agreement to

the parties. Section 2 applies to “[a] written provision in any . .

_ contract .. . to settle by arbitration a controversy thereafter

arising out of such contract” (emphasis added), as well as to

agreements to arbitrate existing disputes. Pre-FAA federal

legislation regarding railroad workers and seamen, on the other

17

hand, was expressly limited to post-controv

xp ) ersy agreements to

arbitrate existing disputes.'° Federal statutes had repeatedly

forbidden employers from making or enforcing contracts with

their workers that purported to limit in advance their ability to

seek redress in the courts.!!

This pre-FAA legislation evinces three congressional

concerns. First, while providing to seamen and railroad

employees the option of taking any known, existing

controversy to arbitration, rather than to court, these laws

sought to preserve and protect access to courts for workers

who did not want to arbitrate a particular dispute. Second,

Congress recognized the ability of employers to dictate

contract terms to existing or prospective employees, and was

determined not to permit the abuse of that power to strip

workers of legally established remedies. Third, in the case of

the FELA itself, under which employees had a constitutional

and statutory right to a jury trial, these limitations protected

workers from coercive employer action designed to shift a

dispute to a forum less favorable to the worker than juries

might be.

. Petitioner’s bare speculation that Congress singled out

railroad employees as examples of an existing arbitration

scheme is dubious. As this Court has repeatedly stated, the

'© 17 Stat. 262, 267 § 24 (arbitration by shipping-commissioner

limited to a specific question agreed upon by seaman and employer); 38

Stat. 103, 105 § 4(5) (agreement to arbitrate must “state specifically the

questions to be submitted . . . for decision.”) Only an agreement to arbitrate

reached after a dispute had arisen could spell out in the required manner the

specific question which the arbitrator was to decide.

'! Eg. 45 U.S.C. § 55 (FELA) (“Any contract .. . purpose

txsun of which hall bo to enable any commen cantar to enioné eatf ene

any liability created by this Act, shall to that extent be void.”), originally

enacted as Act of Apr. 22, 1908, §5, 35 Stat. 65, and upheld as

a POR BROS 08 GO, U8 |

18 19

core of the protections given to railroad workers by the FELA CONCLUSION

is the right to trial by jury in both state and federal court:

The right to trial by jury is “a basic and F “e

fundamental feature of our system of federal poe pth Age casons, the decision of the court of

jurisprudence.” It is part and parcel of the

remedy afforded railroad workers under the

Employers’ Liability Act... . To deprive these |

workers of the benefit of a jury trial in close or Respectfully submitted,

doubtful cases is to take away a goodly |

portion of the relief which Congress has

afforded them.”

Bailey v. Central Vermont Ry., 319 U.S. 350, 354 pow mg White

(1943)(citation omitted). Washin a aes

In Dice v. Akron, Canton & Youngstown R. Co., 342 (202) 965-3500

U.S. 359 (1952), for example, the Ohio court had set aside a

~

plaintiff's jury verdict, enforcing a release which the injured | ERIC SCHNAPPER

worker had signed at the railroad’s behest. This Court | University of Washington

reversed, holding that the state court was required by, the School of Law

FELA to submit all factual issues, including the validity of 1100 N.E. Campus Way

the release, to the jury. The Court emphasized that “the right Seattle, WA 98105

to trial by jury is too substantial a part of the rights accorded (206) 616-3167

by the Act to permit it to be classified as a mere ‘local rule of

procedure’ for denial in the manner that Ohio has here used.” Attorneys for Amicus Curiae

Id. at 363.

In exempting from the FAA not only seamen and peammer 19, 2088

railroad employees, but also other workers engaged in

commerce, Congress intended to assure that the FAA could not

be used to inflict on millions of American workers the very

abuses from which Congress had earlier acted to protect

railroad employees and seamen.

APPENDIX A

FEDERAL STATUTES LIMITED TO PERSONS

ENGAGED IN COMMERCE

7 U.S.C. § 511a (regulation of tobacco producers engaged in

commerce)

13 U.S.C. § 303 (Secretary of the Treasury to collect certain

information on persons engaged in foreign commerce)

15 U.S.C. §§ 13, 13a, 14, 18, 18a (Clayton Act prohibitions

regarding businesses engaged in commerce; Robinson-Patman

Act)

15 U.S.C. § 26a(a) (forbidding restraint of trade in gasahol by

persons engaged in commerce)

15 U.S.C. § 291 (prohibition against use of phrase "United

States assay" on gold by firms engaged in commerce)

15 U.S.C. § 781(g) (securities law applies to an issuer engaged

in interstate commerce)

15 U.S.C. §§ 791(g), 79(m) (regulation of public utility

companies engaged in interstate commerce)

15 U.S.C. §§ 1221(b), 1222 (regulating relations between

franchisees or dealers and manufacturers engaged in

commerce)

15 U.S.C. §§ 1607(c), 1679h(b)(A), 1681s(aX1), 1691c(c),

16921(a) (regulation of credit practices by persons engaged in

commerce)

15 U.S.C. § 16930(c) (regulation of electronic funds transfers

by persons engaged in commerce)

18 U.S.C. § 662 (prohibition against acceptance by agricultural

inspector of a gift from an agent of a firm engaged in

commerce)

App. 2

18 U.S.C. § 1962 (RICO barring use of racketeering proceeds

by enterprise engaged in interstate commerce)

29 U.S.C. § 207(a) (maximum hours for employees engaged in

commerce)

42 U.S.C. § 6276 (information regarding energy technology to

be provided to persons engaged in commerce)

42 U.S.C. § 6391 (federal agencies to seek to prevent foreign

nations from discrimination against U.S. citizens "engaged in

commerce" abroad)

50 U.S.C. App. § 2170 (restrictions on takeover of persons

engaged in interstate commerce where contrary to national

security)

50 U.S.C. § 2170a(a) (prohibition against takeover of company

engaged in interstate commerce which has a contract with the

Department of Defense)

App. 3

APPENDIX B

FEDERAL STATUTES EXPRESSLY LIMITED TO

INTERSTATE TRANSPORTATION OF PERSONS OR

GOODS

7 U.S.C. §§ 1561, 1571, 1572, 1573 (interstate transportation

of seeds)

7 US.C. §§ 2131(2), 2132 (i), 2134, 2143, 2145 (interstate

transportation of animals)

15 U.S.C. §§ 261, 262 (observation of time zones by carriers

engaged in interstate or foreign commerce)

15 U.S.C. §§ 715b, 717, 717f, 717y (interstate transportation

of certain petroleum)

15 U.S.C. § 1271 (transportation of hazardous materials by

carriers engaged in interstate commerce)

18 U.S.C. § 33(a) (explosives in cars, etc. engaged in interstate

commerce)

18 U.S.C. § 231 (interstate transportation of explosives)

18 U.S.C. § 660 (embezzlement or theft from persons engaged

in commerce as a common carrier)

21 U.S.C. § 373 (carriers engaged in interstate commerce)

21 USC. §§ 458(a), 460(a), 464(c)(1) (interstate

transportation of poultry)

21 U.S.C. § 373 (records to be kept by carriers engaged in

interstate commerce)

21 US.C. § 464(c)i) (regulation of poultry products

transported in interstate commerce)

21 U.S.C. § 610(c) (prohibition against interstate transportation

of certain adulterated food)

21 U.S.C. §§ 619, 623 (interstate transportation of carcasses)

App. 4

21 U.S.C. §§ 641, 644 (interstate transportation of certain

meat)

21 U.S.C. §§ 1037, 1039 (interstate transportation of eggs)

33 US.C. §§ 1321(a)(2), 1322(aX(2), 2701(29) (pollution

regulations regarding a vessel engaged in interstate commerce)

38 U.S.C. § 3672(c)(2) (training programs by carriers engaged

in interstate commerce)

42 U.S.C. § 4916 (regulation of noise by carriers engaged in

interstate commerce)

42 U.S.C. § 4917 (regulation of noise levels of motor carriers

engaged in interstate commerce)

42 U.S.C. § 8441(f)(3) (regulation of persons engaged in

interstate transportation of natural gas)

42 USC. § 6939d(c)(1) (exemption regarding certain

hazardous wastes for public vessels not applicable to a vessel

engaged in commerce) /

43 U.S.C. § 1862 (authority of FERC to regulate interstate

transportation of natural gas)

45 U.S.C. § 181 (regulation of air carriers engaged in interstate

or foreign commerce)

45 U.S.C. § 1104(6) (definition of rail carrier)

45 U.S.C. § 1207 (Alaska Railroad designated rail carrier

engaged in interstate or foreign commerce)

46 U.S.C. § 8503(a)(1) (pilots on vessel engaged in interstate

or foreign commerce)

46 U.S.C. App. §§ 354, 355 (passports or persons on and

papers of vessels engaged in interstate or foreign commerce)

46 U.S.C. App. § 1121(h) (authority to investigate aircraft

engaged in interstate or foreign commerce)

App. 5

49 USC. §§ 5102(9), 5109(f), 5110(a) (interstate

transportation of hazardous materials)

49 USC. § 14502 (entities protected against tax

discrimination by states)

49 U.S.C. § 14505(3) (limitation on state taxes)

49 U.S.C. § 80504 (eligibility for Presidential medal of honor)

49 U.S.C. §§ 20104(c), 20109(a), 20109(b)(1) (safety on rail

carner engaged in interstate or foreign commerce)

50 U.S.C. App. § 2017(a)(d)(1) (war claims relating to death of

persons on vessels engaged in commerce on the high seas)