Filed: Aug. 19, 2020
Latest Update: Aug. 19, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BERNADEAN RITTMANN, individually No. 19-35381 and on behalf of all others similarly situated; FREDDIE CARROLL, D.C. No. individually and on behalf of all 2:16-cv-01554- others similarly situated; JULIA JCC WEHMEYER, individually and on behalf of all others similarly situated; RAEF LAWSON, individually and on OPINION behalf of all others similarly situated; in his capacity as Private Attorney General Representative; IAIN MACK, i
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BERNADEAN RITTMANN, individually No. 19-35381 and on behalf of all others similarly situated; FREDDIE CARROLL, D.C. No. individually and on behalf of all 2:16-cv-01554- others similarly situated; JULIA JCC WEHMEYER, individually and on behalf of all others similarly situated; RAEF LAWSON, individually and on OPINION behalf of all others similarly situated; in his capacity as Private Attorney General Representative; IAIN MACK, in..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNADEAN RITTMANN, individually No. 19-35381
and on behalf of all others similarly
situated; FREDDIE CARROLL, D.C. No.
individually and on behalf of all 2:16-cv-01554-
others similarly situated; JULIA JCC
WEHMEYER, individually and on
behalf of all others similarly situated;
RAEF LAWSON, individually and on OPINION
behalf of all others similarly situated;
in his capacity as Private Attorney
General Representative; IAIN MACK,
in his capacity as Private Attorney
General Representative,
Plaintiffs-Appellees,
v.
AMAZON.COM, INC.; AMAZON
LOGISTICS, INC.,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted February 3, 2020
Seattle, Washington
Filed August 19, 2020
2 RITTMANN V. AMAZON.COM
Before: MILAN D. SMITH, JR., N. RANDY SMITH, and
DANIEL A. BRESS, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Bress
SUMMARY *
Arbitration
The panel affirmed the district court’s order denying the
motion of Amazon.com, Inc., and Amazon Logistics, Inc., to
compel arbitration of federal and state wage and hour claims
brought by delivery workers.
One of the named plaintiffs agreed to Amazon’s Terms
of Service when he signed up to work as a delivery provider
for Amazon’s app-based delivery program Amazon Flex
(AmFlex). The Terms of Service included an arbitration
provision.
Agreeing with the First Circuit, the panel held that
AmFlex delivery workers were exempt from the Federal
Arbitration Act’s enforcement provisions because they were
transportation workers engaged in interstate commerce
under 9 U.S.C. § 1 when they made “last mile” deliveries of
goods in the stream of interstate commerce. Considering the
plain meaning of the relevant statutory text, case law
interpreting the exemption’s scope and application, and the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RITTMANN V. AMAZON.COM 3
construction of similar statutory language, the panel held
that to be “engaged in interstate commerce,” the AmFlex
workers did not themselves need to cross state lines.
The panel held that the arbitration provision, which
included a choice-of-FAA clause, could not be enforced
under either federal law or Washington state law.
Dissenting, Judge Bress wrote that the narrow FAA
exemption for certain transportation workers did not apply.
In his view, for a delivery worker to be “engaged in”
interstate commerce, the worker must belong to a “class of
workers” that crosses state lines in the course of making
deliveries.
4 RITTMANN V. AMAZON.COM
COUNSEL
David B. Salmons (argued) and Michael E. Kenneally,
Morgan Lewis & Bockius LLP, Washington, D.C.; Richard
G. Rosenblatt, Morgan Lewis & Bockius LLP, Princeton,
New Jersey; for Defendants-Appellants.
Harold Lichten (argued), Shannon Liss-Riordan, and
Adelaide Pagano, Lichten & Liss-Riordan P.C., Boston,
Massachusetts, for Plaintiffs-Appellees.
Toby J. Marshall, Blythe H. Chandler, and Elizabeth A.
Adams, Terrell Marshall Law Group PLLC, Seattle,
Washington; Jennifer D. Bennett, Public Justice, Oakland,
California; for Amicus Curiae Public Justice.
Archis A. Parasharami and Daniel E. Jones, Mayer Brown
LLP, Washington, D.C., for Amici Curiae Chamber of
Commerce of the United States and National Association of
Manufacturers.
RITTMANN V. AMAZON.COM 5
OPINION
M. SMITH, Circuit Judge:
Defendants Amazon.com, Inc. and Amazon Logistics,
Inc. (together, Amazon) appeal the district court’s order
denying their motion to compel arbitration of Plaintiff Raef
Lawson’s federal and state wage and hour claims. Lawson
is one of four named Plaintiffs in this suit. Unlike the other
named Plaintiffs, Lawson agreed to all of Amazon’s Terms
of Service (TOS) when he signed up to work as a delivery
provider for Amazon’s app-based delivery program,
Amazon Flex (AmFlex), including the arbitration provision
at issue here.
The primary issue that we address is whether AmFlex
delivery workers are exempt from the Federal Arbitration
Act’s (FAA), 9 U.S.C. § 1, et seq., enforcement provisions
because they are transportation workers engaged in interstate
commerce. In denying Amazon’s motion to compel, the
district court concluded that AmFlex delivery providers fall
within the scope of the FAA’s transportation worker
exemption pursuant to § 1 because they deliver goods
shipped from across the United States. The court further
determined that the TOS bars application of Washington
state law to the arbitration provision. As a result, the court
concluded that there is no valid arbitration agreement
between Amazon and Lawson, and denied the motion to
compel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The AmFlex Program
Plaintiffs Bernadean Rittman, Freddie Carroll, Julia
Wehmeyer, and Raef Lawson contracted with Amazon
6 RITTMANN V. AMAZON.COM
Logistics, Inc. to provide delivery services for AmFlex.
Amazon Logistics, Inc. is a subsidiary of Amazon.com, Inc.,
an online retailer that sells its own products and provides
fulfillment services for third-party sellers who also sell their
products on Amazon.com.
Historically, Amazon has shipped products by using
large third-party delivery providers such as FedEx and UPS.
Recently, it has supplemented those delivery services by
contracting with local delivery providers through its AmFlex
program, which is available in certain metropolitan areas in
the United States. In the AmFlex program, Amazon
contracts with individuals to make “last mile” deliveries of
products from Amazon warehouses to the products’
destinations using the AmFlex smart phone application.
AmFlex participants use a personal vehicle or bicycle, or
public transportation, to deliver products ordered through
the Amazon website or mobile applications. They pick up
assigned packages from an Amazon warehouse and drive an
assigned route to deliver the packages. AmFlex delivery
providers occasionally cross state lines to make deliveries,
but most of their deliveries take place intrastate. At the end
of each shift, the delivery providers return undelivered
packages to Amazon’s warehouses.
II. The AmFlex Terms of Service
To sign up for the AmFlex program, individuals must
agree to the AmFlex Independent Contractor TOS in the app,
the most recent version of which—and the one at issue
here—was updated in October 2016. In relevant part, the
TOS provides that:
YOU AND AMAZON AGREE TO
RESOLVE DISPUTES BETWEEN YOU
AND AMAZON ON AN INDIVIDUAL
RITTMANN V. AMAZON.COM 7
BASIS THROUGH FINAL AND
BINDING ARBITRATION, UNLESS
YOU OPT OUT OF ARBITRATION
WITHIN 14 CALENDAR DAYS OF THE
EFFECTIVE DATE OF THIS
AGREEMENT, AS DESCRIBED BELOW
IN SECTION 11. If you do not agree with
these terms, do not use the Amazon Flex app
or participate in the Program or provide any
Services.
Section 11 of the TOS in turn provides that:
b) TO THE EXTENT PERMITTED BY
LAW, THE PARTIES AGREE THAT ANY
DISPUTE RESOLUTION PROCEEDINGS
WILL BE CONDUCTED ONLY ON AN
INDIVIDUAL BASIS AND NOT ON A
CLASS OR COLLECTIVE BASIS.
The TOS is governed by “the law of the state of Washington
without regard to its conflict of laws principles, except for
Section 11 of [the] Agreement, which is governed by the
Federal Arbitration Act and applicable federal law.” The
TOS further provides that, “If any provision of this
Agreement is determined to be unenforceable, the parties
intend that this Agreement be enforced as if the
unenforceable provisions were not present and that any
partially valid and enforceable provisions be enforced to the
fullest extent permissible under applicable law.”
Plaintiffs Rittman, Carroll, and Wehmeyer timely opted
out of arbitration when they signed up for AmFlex and thus
are not subject to the arbitration provision. Plaintiff Lawson,
8 RITTMANN V. AMAZON.COM
however, did not opt out. He then went on to make deliveries
in the Los Angeles area.
III. The District Court Proceedings
In 2016, Plaintiffs Rittman, Carroll, and Wehmeyer filed
this proposed collective and class action lawsuit alleging that
Amazon misclassifies AmFlex users as independent
contractors rather than employees. In 2017, they filed a
Second Amended Complaint (SAC), adding Lawson as a
plaintiff. The SAC alleges violations by Amazon of the Fair
Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et
seq., the California Labor Code, and Washington state and
Seattle municipal wage and hour laws. Plaintiffs seek to
bring the FLSA claims as a nationwide collective action and
their state claims as state-wide class actions.
Amazon moved to compel Lawson’s claims to
arbitration. The district court stayed the proceedings
pending the resolution of Epic Systems Corp. v. Lewis,
138 S. Ct. 1612 (2018), Van Dusen v. Swift Transportation
Co., No. 17-15102 (9th Cir. Jan. 20, 2017), and New Prime
Inc. v. Oliveira,
139 S. Ct. 532 (2019). Following the
Supreme Court’s decision in New Prime, the parties
supplemented their briefing on the motion to compel.
The district court denied Amazon’s motion to compel.
The court determined that Plaintiffs fell within the FAA’s
transportation worker exemption, which exempts from the
FAA’s arbitration enforcement provisions the “contracts of
employment of seamen, railroad employees, or any other
class of workers engaged in foreign or interstate commerce.”
9 U.S.C. § 1. The court then considered whether the
arbitration provision in Section 11 was otherwise valid and
enforceable. Pointing to the text of the TOS’s governing law
provision, the court determined that the FAA did not govern
RITTMANN V. AMAZON.COM 9
Section 11 in light of the application of the FAA’s
exemption, and that the parties did not intend Washington
law to apply either. As a result, the court determined that it
was not clear what law would apply to the provision, or
whether the parties intended to arbitrate disputes in the event
the FAA did not apply. Accordingly, the court concluded
that there was no valid agreement to arbitrate and denied
Amazon’s motion to compel arbitration. Amazon timely
appealed, and the district court stayed proceedings pending
this appeal.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(B).
We review an order denying a motion to compel arbitration
de novo. O’Connor v. Uber Techs., Inc., 904 F.3d 1087,
1093 (9th Cir. 2018). We review the validity of an
arbitration clause de novo. Cape Flattery Ltd. v. Titan
Maritime, LLC,
647 F.3d 914, 917 (9th Cir. 2011). The
factual findings underlying a district court’s decision are
reviewed for clear error.
Id. The interpretation and meaning
of contract provisions are questions of law that we review de
novo. Tompkins v. 23andMe, Inc.,
840 F.3d 1016, 1021 (9th
Cir. 2016).
ANALYSIS
The FAA generally provides that arbitration agreements
“shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. The FAA contains a number of
enforcement mechanisms for private parties to compel
arbitration pursuant to a valid arbitration agreement. The
FAA, however, exempts certain contracts from its scope,
specifically the employment contracts of “seamen, railroad
employees, [and] any other class of workers engaged in
10 RITTMANN V. AMAZON.COM
foreign or interstate commerce.” 9 U.S.C. § 1; Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 118–19 (2001). This
appeal requires us to decide whether the AmFlex delivery
providers in this case fall within the scope of the exemption.
Because we conclude that they do, and thus that their
employment contracts are not subject to the FAA, we
consider and reject Amazon’s further argument that there is
nevertheless a valid and enforceable arbitration agreement
between the parties.
I. The FAA’s Transportation Worker Exemption
Amazon challenges the district court’s conclusion that
AmFlex delivery providers are exempt from the FAA as
transportation workers “engaged in foreign or interstate
commerce.” 9 U.S.C. § 1. According to Amazon, its
delivery providers participate in “purely intrastate activities”
when they make last mile deliveries and thus are not
“engaged in interstate commerce.” Amazon’s position rests
on the notion that transportation workers must actually cross
state lines to be “engaged in interstate commerce” for the
exemption to apply. We reject that construction of that
statute. Properly construed, § 1 encompasses the contracts
of the AmFlex delivery providers in this case.
A. The Meaning of “Engaged in Interstate
Commerce” in § 1
To resolve Amazon’s appeal, we must first interpret the
meaning of the phrase “engaged in interstate or foreign
commerce,” as used in § 1 of the FAA. We begin by briefly
turning to the Supreme Court’s decision in Circuit City, in
which the Court addressed the scope and application of § 1.
The Court held that § 1 narrowly “exempts from the FAA
only contracts of employment of transportation workers,”
and not all contracts of employment generally. Id. at 119;
RITTMANN V. AMAZON.COM 11
see also
id. at 118 (“[T]he location of the phrase ‘any other
class of workers engaged in . . . commerce’ in a residual
provision, after specific categories of workers have been
enumerated, undermines any attempt to give the provision a
sweeping, open-ended construction.”). To arrive at that
conclusion, the Court interpreted “[t]he plain meaning of the
words ‘engaged in commerce’ [to be] narrower than the
more open-ended formulation ‘affecting commerce’ and
‘involving commerce’” when construed “with reference to
the statutory context . . . and in a manner consistent with the
FAA’s purpose.”
Id. at 118. In limiting the exemption’s
scope to employment contracts of transportation workers,
the Court did not decide the specific issue that Amazon
raises: whether transportation workers must cross state lines
to be considered workers “engaged in commerce” for the
purposes of the exemption’s application.
We do not, however, approach this issue on a blank slate.
The plain meaning of the relevant statutory text, case law
interpreting the exemption’s scope and application, and the
construction of similar statutory language all support the
conclusion that transportation workers need not cross state
lines to be considered “engaged in foreign or interstate
commerce” pursuant to § 1.
To ascertain the plain meaning of the statutory text, we
look to the “ordinary meaning at the time Congress enacted
the statute.” New Prime, 139 S. Ct. at 539 (alterations
adopted) (internal quotation marks omitted) (quoting Wis.
Cent. Ltd. v. United States,
138 S. Ct. 2067, 2074 (2018)).
When Congress enacted the FAA, the word “engaged”
meant “occupied or employed.” Engaged, Webster’s New
International Dictionary (1st ed. 1909). “Commerce” was
defined as:
12 RITTMANN V. AMAZON.COM
Intercourse by way of trade and traffic
between different people or states and the
citizens or inhabitants thereof, including not
only the purchase, sale, and exchange of
commodities, but also the instrumentalities
and agencies by which it is promoted and the
means and appliances by which it is carried
on, and the transportation of persons as well
as of goods, both by land and by sea.
Commerce, Black’s Law Dictionary (2d ed. 1910). Taken
together, those definitions can reasonably be read to include
workers employed to transport goods that are shipped across
state lines. The ordinary meaning of those words does not
suggest that a worker employed to deliver goods that
originate out-of-state to an in-state destination is not
“engaged in commerce” any less than a worker tasked with
delivering goods between states.
Our reading of the statutory text is reinforced by
decisions of other circuits and our own that have applied the
exemption, as well as decisions that interpret similar
statutory language. Most recently, in a nearly identical case
involving the AmFlex program, the First Circuit held that
AmFlex delivery providers fall within the § 1 exemption.
Waithaka v. Amazon.com, Inc., No. 19-1848, — F.3d —,
2020 WL 4034997, at *1 (1st Cir. July 17, 2020). Relying
on much of the same reasoning discussed below, see infra
pp. 15–21, the First Circuit looked to statutes
contemporaneous to the FAA, in particular the Federal
Employees Liability Act (FELA) of 1908, to conclude that
the meaning of the phrase “engaged in interstate commerce,”
as understood at the time of the FAA’s passage, was not
limited to those transportation workers who themselves
crossed state lines. Waithaka,
2020 WL 4034997, at *5–8.
RITTMANN V. AMAZON.COM 13
Further, at the time the Supreme Court decided Circuit
City, every other circuit to have addressed the issue
presented here interpreted § 1 to exempt “the employment
contracts of workers actually engaged in the movement of
goods in interstate commerce.” Cole v. Burns Int’l Sec.
Servs., 105 F.3d 1465, 1471 (D.C. Cir. 1997) (emphasis
added) (collecting cases). Courts did not interpret that
definition to require that a worker actually cross state lines
for purposes of the exemption. For example, in Palcko v.
Airborne Express, Inc., the Third Circuit held that a
supervisor for a package transportation and delivery
company who supervised drivers delivering packages in the
Philadelphia area was a transportation worker engaged in
interstate commerce because her work was “so closely
related [to interstate and foreign commerce] as to be in
practical effect part of it.” 1
372 F.3d 588, 593 (3d Cir. 2004)
(alterations in original) (quoting Tenney Eng’g, Inc. v.
United Elec. & Mach. Workers of Am.,
207 F.2d 450, 452
(3d Cir. 1953)).
Federal district courts and state courts have also
understood § 1 not to require that a worker cross state lines.
See, e.g., Nieto v. Fresno Beverage Co., Inc., 245 Cal. Rptr.
3d 69, 76 (Ct. App. 2019) (stating that a beverage company’s
deliveries of products purchased from national and
international companies, “although intrastate, were
1
Recently, the Third Circuit affirmed Palcko and expanded its test
to include workers who transport people, like rideshare services. Singh
v. Uber Techs., Inc., 939 F.3d 210, 219 (3d Cir. 2019). “[T]he residual
clause of § 1 is not limited to transportation workers who transport
goods, but may also apply to those who transport passengers, so long as
they are engaged in interstate commerce or in work so closely related
thereto as to be in practical effect part of it.”
Id. The court remanded to
the district court to decide whether rideshare drivers are engaged in
interstate transportation within the meaning of § 1.
Id. at 227.
14 RITTMANN V. AMAZON.COM
essentially the last phase of a continuous journey of the
interstate commerce . . . being transported until reaching its
destination[] to [the company’s] customers.”); Christie v.
Loomis Armored US, Inc., No. 10-cv-02011-WJM-KMT,
2011 WL 6152979, at *3 (D. Colo. Dec. 9, 2011) (finding
intrastate delivery driver of currency exempt because the
deliveries involved “a good that is undisputedly in the stream
of interstate commerce”); Ward v. Express Messenger Sys.,
Inc.,
413 F. Supp. 3d 1079, 1085–87 (D. Colo. 2019);
Zamora v. Swift Transp. Corp., No. EP-07-CA-00400-KC,
2008 WL 2369769, at *9 (W.D. Tex. June 3, 2008), aff’d on
other grounds, 319 F. App’x 333 (5th Cir. 2009).
Courts have determined that workers do not fall within
the scope of § 1’s exemption when their job duties are “only
tangentially related to [the] movement of goods.” Lenz v.
Yellow Transp., Inc., 431 F.3d 348, 351–52 (8th Cir. 2005).
For example, in Lenz, the court held a customer service
representative for a transportation carrier was not engaged in
interstate commerce because he “never directly transported
goods in interstate commerce,” “had no direct responsibility
for transporting goods in interstate commerce,” “never
handled any of the packages that [the carrier] delivered,” or
“directly supervise[d] the drivers in interstate commerce,”
among other reasons.
Id. at 352–53. Similarly, the Eleventh
Circuit concluded that “workers who incidentally
transported goods interstate as a part of their job in an
industry that would otherwise be unregulated” did not fall
within the exemption. Hill v. Rent-A-Center, Inc.,
398 F.3d
1286, 1289 (11th Cir. 2005) (holding that an account
manager for a rent-to-own business who occasionally made
out-of-state deliveries was not part of a class of workers in
the transportation industry for purposes of the § 1
exemption).
RITTMANN V. AMAZON.COM 15
Case law interpreting the phrase “engaged in commerce”
in § 1 accords with how courts have interpreted similar
statutory language. For example, courts interpreting FELA
have held that workers were employed in interstate
commerce even when they did not cross state lines.
FELA provides that “[e]very common carrier by railroad
while engaging in commerce between any of the several
States . . . shall be liable in damages to any person suffering
injury while he is employed by such carrier in such
commerce” if the injury “results in whole or in part from the
negligence of” the carrier. 45 U.S.C. § 51 (emphasis added).
Prior to the FAA’s enactment in 1925, the Supreme Court
articulated that “the true test of such employment in [such]
commerce in the sense intended is, [w]as the employee, at
the time of the injury, engaged in interstate transportation, or
in work so closely related to it as to be practically a part of
it?” Shanks v. Del., Lackwanna & W. R.R. Co., 239 U.S.
556, 558 (1916). The Court cited numerous examples of
injured employees considered to be engaged in interstate
commerce when they did not cross state lines in the course
of their work. 2
Id. at 558–59 (collecting cases). See also
2
Amazon attempts to distinguish cases that interpret FELA on the
basis that FELA “require[s] a broad construction directly opposite to the
narrow construction that the Exemption requires given the FAA’s
purposes.” But FELA’s breadth concerns what conduct constitutes an
employer’s negligence within the meaning of the act, not the meaning of
“employed in commerce” that concerns us here. See Atchison, Topeka
& Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561 (1987) (“A primary
purpose of the Act was to eliminate a number of traditional defenses to
tort liability and to facilitate recovery in meritorious cases.”);
id. at 562
n.8 (“Indeed, in the spirit of broad construction, the FELA has been
construed to cover some intentional torts even though its text only
mentions negligence.”); Jamison v. Encarnacion,
281 U.S. 635, 640
(1930), superseded by statute on other grounds as recognized in
McDermott Int’l, Inc. v. Wilander,
498 U.S. 337, 348 (1991) (“The Act
16 RITTMANN V. AMAZON.COM
Phila. & R. Ry. Co. v. Hancock,
253 U.S. 284, 286 (1920)
(railroad worker injured while operating a train carrying
coal, some of which would ultimately be shipped out of state,
was engaged in interstate commerce for FELA purposes
because “the shipment was but a step in the transportation of
the coal to real and ultimate destinations in another state”);
Waithaka,
2020 WL 4034997, at *5 (“[W]orkers ‘engaged
in interstate commerce’ did not refer only to those workers
is not to be narrowed by refined reasoning or for the sake of giving
‘negligence’ a technically restricted meaning. It is to be construed
liberally to fulfill the purposes for which it was enacted, and to that end
the word [‘negligence’] may be read to include all the meanings given to
it by courts, and within the word as ordinarily used.”). Moreover,
contrary to the dissent’s position, “there is no indication that the remedial
purpose of the FELA affected the Supreme Court’s conclusion that
injured railroad workers who were transporting within one state goods
destined for or coming from other states . . . were engaged in interstate
commerce.” Waithaka,
2020 WL 4034997, at *8. As the First Circuit
explained, “FELA was concerned with the activities of employees, just
as the FAA is. Indeed, in . . . the FELA precedents that we have
discussed, the question before the Court was the same as it is here:
whether certain transportation workers engaged in interstate commerce.”
Id. at *7.
Amazon also points out that Congress amended FELA to eliminate
courts’ line-drawing between intrastate and interstate activities. The
1939 amendment added a paragraph that broadened FELA’s application
beyond those “employed in commerce” to include “[a]ny employee of a
carrier, any part of whose duties . . . shall be the furtherance of interstate
or foreign commerce; or shall, in any way directly or closely and
substantially, affect such commerce as set forth shall, for the purposes of
this chapter, be considered as being employed by such carrier in such
commerce and shall be considered entitled to the benefits of this
chapter.” 45 U.S.C. § 51. Whatever the “very fine distinctions” drawn
in cases interpreting FELA before 1939, see S. Pac. Co. v. Gileo,
351 U.S. 493, 497 (1956), there is no question that the “employed in
commerce” language embraced employees who did not cross state lines
but were nevertheless engaged in interstate commerce.
RITTMANN V. AMAZON.COM 17
who themselves carried goods across state lines, but also
included at least two other categories of people: (1) those
who transported goods or passengers that were moving
interstate,” and “(2) those who were not involved in transport
themselves but were in positions ‘so closely related’ to
interstate transportation ‘as to practically be a part of it”
(citations omitted).). “In incorporating almost exactly the
same phraseology into the Arbitration Act of 1925 its
draftsmen and the Congress which enacted it must have had
in mind this current construction of the language which they
used.” Tenney, 207 F.2d at 453.
Similarly, the Supreme Court has held that the actual
crossing of state lines is not necessary to be “engaged in
commerce” for purposes of the Clayton and Robinson-
Patman Acts. In a pair of cases decided in the same term,
the Court clarified that Congress’s use of the term “engaged
in commerce” was a limited assertion of its jurisdiction, and
“denote[d] only persons or activities within the flow of
interstate commerce—the practical, economic continuity in
the generation of goods and services for interstate markets
and their transport and distribution to the consumer.” Gulf
Oil Corp. v. Copp Paving Co., Inc., 419 U.S. 186, 195
(1974). Put another way, “[t]o be engaged ‘in commerce’
within the meaning of [the Clayton Act], a corporation must
itself be directly engaged in the production, distribution or
acquisition of goods or services in interstate commerce.”
United States v. Am. Bldg. Maint. Indus.,
422 U.S. 271, 283
(1975) (holding that the phrase “‘engaged in commerce’ as
used in § 7 of the Clayton Act means engaged in the flow of
interstate commerce”). Thus, “a firm engaged in entirely
intrastate sales of asphaltic concrete, a product that can be
marketed only locally,” even though the product was used to
surface roads and interstate highways, was not “engaged in
commerce” when it did not make interstate sales and was not
18 RITTMANN V. AMAZON.COM
otherwise involved in national markets. Gulf
Oil, 419 U.S.
at 188, 195. The Court suggested that the firm could have
satisfied the interstate commerce hook by showing that “the
local market in asphaltic concrete [was] an integral part of
the interstate market in other component commodities or
products.”
Id. at 196. 3
Although “statutory jurisdictional formulations” do not
“necessarily have a uniform meaning whenever used by
Congress,” Circuit City, 532 U.S. at 118 (quoting Am.
Bldg.,
422 U.S. at 277), the fact that the phrases “employed in
commerce” or “engaged in commerce” have not been
interpreted to require businesses or employees to cross state
lines persuades us that Amazon’s unduly restrictive
construction of the phrase is unwarranted. See Swift & Co.
v. United States,
196 U.S. 375, 398–99 (1905)
(“[C]ommerce among the states is not a technical legal
conception, but a practical one, drawn from the course of
business.”).
Amazon insists that the term “engaged in commerce,” as
used in those statutes and as discussed in Circuit City, is not
akin to the phrase “engaged in foreign or interstate
3
Amazon’s further concern that these statutes encompass broader
conduct than § 1 does not relate to the interpretation of the term “engaged
in commerce,” but instead pertains to the subject that phrase modifies in
those particular statutes. For example, citing American Building,
422 U.S. at 283, Amazon claims that “[i]n cases applying other statutes,
courts have included much more than transportation in the ‘flow’ of
commerce, including the production of goods for interstate sales.” That
case involved the Clayton Act, which made it unlawful “for any person
engaged in commerce” to discriminate in price. See Gulf
Oil, 419 U.S.
at 193 n.9 (emphasis added). Here, however, the concern that § 1 may
sweep so broadly as to apply to corporations that manufacture or produce
goods in interstate commerce is unfounded, because § 1 applies only to
transportation workers engaged in such commerce.
RITTMANN V. AMAZON.COM 19
commerce” in § 1 of the FAA. Amazon argues that we must
interpret the latter phrase in § 1 so as not to read words out
of the statute. See Circuit City, 532 U.S. at 117 (discussing
Gulf
Oil, 419 U.S. at 202, and Am.
Bldg., 422 U.S. at 283).
That contention is not persuasive.
The term “in commerce” refers to interstate and foreign
commerce—the type of commerce that Congress has the
power to regulate. See, e.g., Gulf Oil, 419 U.S. at 195
(“[T]he distinct ‘in commerce’ language of the Clayton and
Robinson-Patman Act provisions . . . appears to denote only
persons or activities within the flow of interstate
commerce.” (emphasis added)); Am.
Bldg., 422 U.S. at 285–
86 (“[S]ince the Benton companies did not participate
directly in the sale, purchase, or distribution of goods or
services in interstate commerce, they were not ‘engaged in
commerce’ within the meaning of § 7 of the Clayton Act.”)
(emphasis added)). The FAA defines the term “commerce”
as “commerce among the several States or with foreign
nations . . .” 9 U.S.C. § 1. We see no way to meaningfully
distinguish between the word “commerce” used in § 2,
defined as “commerce among the several States or with
foreign nations,” with the “foreign or interstate commerce”
referenced in § 1. As Circuit City explains, Congress did not
vary what it regulated in these provisions, only the reach of
its regulation. Circuit
City, 532 U.S. at 115, 117–18
(explaining that the phrase “affecting” or “involving”
commerce demonstrated an intent to regulate to the full
extent of Congress’s Commerce Clause authority, whereas
“engaged in commerce” is “understood to have a more
limited reach”). Indeed, interpreting § 1, the Supreme Court
itself used the phrase “engaged in commerce” as shorthand
for the statutory text “engaged in foreign or interstate
commerce.” See Circuit
City, 532 U.S. at 115, 116, 118.
20 RITTMANN V. AMAZON.COM
Amazon and the dissent further contend that we must
narrow the definition of “engaged in foreign or interstate
commerce” to accord with the FAA’s statutory context and
pro-arbitration purposes. We recognize that Circuit City
rejected an expansive reading of the transportation worker
exemption based in part on construing the statutory phrase
“engaged in commerce” more narrowly than the phrase
“involving commerce” in § 2. But Circuit City interpreted
the phrase in that manner to explain why the exemption
applied only to the employment contracts of transportation
workers, as opposed to all employment contracts. See
532 U.S. at 118–19. Nothing in Circuit City requires that we
rely on the pro-arbitration purpose reflected in § 2 to even
further limit the already narrow definition of the phrase
“engaged in commerce.” The authorities we have discussed
simply do not run afoul of Circuit City because, as we have
explained, Circuit City did not address what is at issue here. 4
In light of the weight of authority interpreting “engaged
in commerce” not strictly to require the crossing of state
lines, we are not persuaded that § 1 is amenable to the
interpretation offered by Amazon. Accordingly, we
4
Amazon also relies on Circuity City’s discussion of existing and
forthcoming legislation around the time the FAA was passed that
provided for arbitration of disputes for transportation workers to argue
that Congress did not intend the § 1 exemption to encompass the type of
delivery providers at issue here. See Circuit City, 532 U.S. at 120–21.
For the reasons the Third Circuit persuasively articulated in
Singh,
939 F.3d at 225, we refuse to rely on speculation in Circuit City as to
Congress’s intent—not only because doing so would be imprudent, but
also because the Supreme Court cautioned against it. See Circuit
City,
532 U.S. at 119–20. See also Waithaka,
2020 WL 4034997, at *10
(“[T]he residual clause means that Congress contemplated the future
exclusion of workers other than railroad employees and seamen, and it
did not limit that exclusion to those with available dispute resolution
systems. Purpose cannot override text.”).
RITTMANN V. AMAZON.COM 21
conclude that § 1 exempts transportation workers who are
engaged in the movement of goods in interstate commerce,
even if they do not cross state lines.
B. Application of § 1 to AmFlex Delivery Providers
In light of our construction of the statute and
consideration of the record, we conclude that AmFlex
delivery providers belong to a class of workers engaged in
interstate commerce that falls within § 1’s exemption.
Amazon is “one of the world’s largest online retailers”
that “work[s] closely with freight and transport companies
on a massive scale to ensure that every individual shipment
gets where it needs to go.” Amazon Logistics, with an aim
to “expand transportation capabilities worldwide,” seeks to
achieve its goal of “provid[ing] customers with an incredible
package delivery experience through the last mile of the
order” by partnering with independent delivery businesses
and AmFlex delivery providers. AmFlex delivery providers
are a class of workers that transport packages through to the
conclusion of their journeys in interstate and foreign
commerce.
There is no suggestion that the goods AmFlex workers
deliver originate in the same state where deliveries take
place, such that delivery providers are making purely
intrastate deliveries. Rather, AmFlex workers pick up
packages that have been distributed to Amazon warehouses,
certainly across state lines, and transport them for the last leg
of the shipment to their destination. Although Amazon
contends that AmFlex delivery providers are “engaged in
local, intrastate activities,” the Amazon packages they carry
are goods that remain in the stream of interstate commerce
until they are delivered. AmFlex delivery providers are thus
transportation workers engaged in the movement of
22 RITTMANN V. AMAZON.COM
interstate commerce and exempt from the FAA’s
application.
The cases on which Amazon relies do not persuade us
otherwise. In People of State of New York ex rel.
Pennsylvania Railroad Co. v. Knight, 192 U.S. 21 (1904),
the Supreme Court held that an interstate railroad that
charged separately for a wholly intrastate cab service that
transported railroad passengers to and from the ferry was
subject to state taxation because the cab service was
“exclusively rendered within the limits of the city” and
“contracted and paid for independently of any contract or
payment for strictly interstate transportation.”
Id. at 26.
Amazon contends that the “separation in fact . . .
between transportation service wholly within the state and
that between the states,” id. at 27, is relevant here, where
Amazon contracts for local deliveries with AmFlex drivers.
While that fact may be relevant for taxation purposes, the
Court explained that, “[u]ndoubtedly, a single act of carriage
or transportation wholly within a state may be part of a
continuous interstate carriage or transportation. Goods
shipped from Albany to Philadelphia may be carried by the
New York Central Railroad only within the limits of New
York, and yet that service is in interstate carriage.”
Id. at 26.
That is precisely the case here. AmFlex drivers’
transportation of goods wholly within a state are still a part
of a continuous interstate transportation, and those drivers
are engaged in interstate commerce for § 1’s purposes.
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) is similarly distinguishable. In
Schechter Poultry, live poultry shipped from out of state
“came to rest” when they reached slaughterhouses for
“slaughter and local sale to retail dealers and butchers who
in turn sold directly to consumers.”
Id. at 543. “The
RITTMANN V. AMAZON.COM 23
interstate transactions in relation to that poultry” thus ended
at the slaughterhouse: “So far as the poultry here in question
is concerned, the flow in interstate commerce had ceased.
The poultry had come to a permanent rest within the state. It
was not held, used, or sold by defendants in relation to any
further transactions in interstate commerce and was not
destined for transportation to other states.” Id. at 542–43.
Once the poultry reached the slaughterhouses, any further
“commerce” involving the poultry required new or
subsequent transactions, all of which took place within the
state of the slaughterhouse. Those transactions thus marked
the dividing line between interstate and intrastate commerce.
Id.
Here, however, Amazon packages do not “come to rest,”
at Amazon warehouses, and thus the interstate transactions
do not conclude at those warehouses. The packages are not
held at warehouses for later sales to local retailers; they are
simply part of a process by which a delivery provider
transfers the packages to a different vehicle for the last mile
of the packages’ interstate journeys. The interstate
transactions between Amazon and the customer do not
conclude until the packages reach their intended
destinations, and thus AmFlex drivers are engaged in the
movement of interstate commerce. 5
We agree with the district court that cases involving food
delivery services like Postmates or Doordash are likewise
distinguishable. Those cases recognize that local food
delivery drivers are not “engaged in the interstate transport
5
We do not purport, as the dissent contends, to create a “come to
rest” doctrine. Amazon’s reliance on Knight and Schecter Poultry is
misplaced, and, as we explain, those cases are readily distinguishable
from the facts at hand.
24 RITTMANN V. AMAZON.COM
of goods” because the prepared meals from local restaurants
are not a type of good that are “indisputably part of the
stream of commerce.” Levin v. Caviar, Inc., 146 F. Supp. 3d
1146, 1153 (N.D. Cal. 2015) (internal quotation marks
omitted); accord Lee v. Postmates Inc.,
2018 WL 6605659,
at *7 (N.D. Cal. Dec. 17, 2018) (concluding that deliveries
for local merchants by a company that does not hold itself
out as transporting goods between states are not engaged in
interstate commerce). The Seventh Circuit’s decision in
Wallace v. Grubhub Holdings, Inc., — F.3d —,
2020 WL
4463062 (7th Cir. 2020) is, as well. In Wallace, the court
held that Grubhub drivers, who deliver take-out orders from
local restaurants, are not covered by the § 1 exemption.
Id.
at *3
. The court determined that the focus of the § 1 inquiry
is “on the worker’s active engagement in the enterprise of
moving goods across interstate lines.”
Id. at *2 (citing
Waithaka,
2020 WL 4034997, at *11, for the proposition that
“truckers who drive an intrastate leg of an interstate route”
fall within the exemption). “Put differently, a class of
workers must themselves be ‘engaged in the channels of
foreign or interstate commerce.” 6
Id. at *3 (quoting
McWilliams v. Logicon, Inc.,
143 F.3d 573, 576 (10th Cir.
1998)). Unlike in Wallace, here AmFlex workers complete
the delivery of goods that Amazon ships across state lines
and for which Amazon hires AmFlex workers to complete
the delivery. AmFlex workers form a part of the channels of
6
Despite the dissent’s reliance on Wallace, the Seventh Circuit did
not adopt the dissent’s proposed interpretation, that workers must
actually cross state lines to be considered “engaged in interstate
commerce” for purposes of § 1.
RITTMANN V. AMAZON.COM 25
interstate commerce, and are thus engaged in interstate
commerce as we understand that term. 7
Our dissenting colleague rejects these distinctions,
insisting that all local delivery is the same, regardless of
what is being delivered or from where. The dissent contends
that “AmFlex workers’ ‘engagement’ as workers delivering
goods from out of state loses sight of the fact that the out-of-
state nature of the goods is irrelevant to the actual work the
AmFlex workers perform.” As we have explained, the
dissent’s characterization ignores Supreme Court precedent
interpreting nearly identical language that does, in fact,
consider the out-of-state nature of goods. See, e.g.,
Hancock, 253 U.S. at 286 (rejecting the argument that coal
transported by railroad was not part of interstate commerce
in its preliminary intrastate journey and concluding that
“[t]he determining circumstance is that the shipment was but
a step in the transportation of the coal to real and ultimate
destinations in another state”).
In addition, the dissent’s preference to define AmFlex
delivery providers as a class of workers engaged in purely
local deliveries turns on the contention that the exemption’s
“coverage does not depend on the company for whom the
7
Setting aside whatever merits of the dissent’s discussion of jarred
sauces and canned sodas, the fact remains that AmFlex workers are
engaged to deliver packages from out of state or out of the country, even
if they also deliver food from local restaurants. They are thus engaged
in interstate commerce, even if that engagement also involves intrastate
activities. See Harden v. Roadway Package Sys., Inc., 249 F.3d 1137,
1140 (9th Cir. 2001) (delivery driver who “contracted to deliver
packages throughout the United States” (emphasis added) was engaged
in interstate commerce for purposes of § 1, even where there was no
indication the driver himself actually crossed state lines).
26 RITTMANN V. AMAZON.COM
delivery person works.” We are persuaded by the First
Circuit’s reasoning, which squarely rejected this argument:
Although our ultimate inquiry is whether a
class of workers is “engaged in . . . interstate
commerce,” the question remains how we
make that determination. The nature of the
business for which a class of workers perform
their activities must inform that assessment.
After all, workers’ activities are not pursued
for their own sake. Rather, they carry out the
objectives of a business, which may or may
not involve the movement of “persons or
activities within the flow of interstate
commerce.”
Waithaka, 2020 WL 4034997, at *8. Although the dissent
contends that the nature of a business is not tethered to the
text of the residual clause, the residual clause does not
foreclose such a consideration. Indeed, “[c]onsideration of
the nature of the hiring company’s business carries out the
Supreme Court’s instruction that we must construe the
residual clause of Section 1 consistently with the specific
preceding categories of workers—‘seamen’ and ‘railroad
employees’.”
Id. (citation omitted). “Plainly, these groups,
defined by the nature of the business for which they work,
demonstrate that the activities of a company are relevant in
determining the applicability of the FAA exemption to other
classes of workers.”
Id.
In this case, Amazon’s business includes not just the
selling of goods, but also the delivery of those goods,
typically undertaken by those businesses we have considered
to be engaged in foreign and interstate commerce, e.g.,
FedEx and UPS. See
Harden, 249 F.3d at 1140 (holding
RITTMANN V. AMAZON.COM 27
delivery driver for predecessor company of FedEx fell
within the § 1 exemption). 8 Were Amazon to use a
proprietary ship fleet or rail system to accomplish the same
goals, those workers would be subject to the exemption.
Contrary to the dissent’s understanding, the “limiting”
factors we rely on today stem directly from the statute and
do not run afoul of the canon of ejusdem generis.
The dissent also contends that Amazon’s reading of the
statute is more beneficial because “it is relatively easy to
8
The dissent places great weight on Harden, focusing on the
“plainly interstate nature of the delivery work” in that case. But there is
no indication that the delivery driver in that case actually crossed state
lines, as the dissent here contends is necessary to be engaged in interstate
commerce. Rather, we concluded in Harden that delivery drivers were
engaged in interstate commerce for purposes of § 1 where they
contracted to “provid[e] a small package information, transportation and
delivery service throughout the United States, with connecting
international service.” Harden, 249 F.3d at 1139. In that case, we
focused not on the precise movements of specific workers—as our
decision did not turn on the driver’s specific routes and whether they
were interstate but on the fact that the worker had been engaged to move
packages “throughout the United States, with connecting international
service.”
Id. at 1140
. Indeed, in Harden, we did not distinguish between
long-haul transportation or local deliveries, despite the dissent’s
insistence that the FAA requires as much. Nothing in that decision
supports the dissent’s assumption that the delivery driver himself made
deliveries “throughout the United States.” That’s not how companies
like UPS or FedEx, the successor to the company in Harden, work. Just
like Amazon, those companies generally use long-haul truckers to
transport goods across state lines to distribution warehouses, where
intrastate delivery drivers pick up packages to make last-mile deliveries
from those warehouses to the packages’ final destinations. Without more
detail about the type of work the plaintiff in Harden engaged in, the more
plausible inference is that the driver there, specifically a delivery driver,
made last-mile deliveries wholly within a given state, as opposed to
piloting cargo planes to provide “connecting international service” or
providing other interstate “information [or] transportation” services.
Id.
28 RITTMANN V. AMAZON.COM
apply,” as opposed to its view that we undertake
impermissible “line-drawing” not supported by the statute.
However, as the First Circuit explained, line-drawing “is a
product of Circuit City itself. In concluding that the residual
clause does not encompass all employment contracts, but
only those of transportation workers, the Court left it to the
lower courts to assess which workers fall within that
category. Doing so unavoidably requires the line-drawing
that courts often do.” Waithaka,
2020 WL 4034997, at *11.
The same is true with respect to determining whether a class
of workers is engaged in interstate commerce. If that line-
drawing proves to be unmanageable, it is up to Congress, not
jurists, to revise the statute. Congress did so with FELA, see
supra note 2, and we have no reason to believe it cannot do
so here. Contrary to the dissent’s position, we do not
interpret the FAA based on aspiration, but rather according
to the meaning of the statute’s words at the time the FAA
was enacted. 9 New
Prime, 139 S. Ct. at 539.
Accordingly, we conclude that AmFlex delivery
providers fall within the exemption, even if they do not cross
state lines to make their deliveries. The district court did not
err in denying Amazon’s motion to compel arbitration on
that basis.
9
Notably, the only contemporaneous support for the dissent’s
preferred interpretation comes from the same dictionaries we use to
ascertain the FAA’s meaning at is enactment. For all its critiques of
FELA, the dissent ignores the longstanding reliance on that statute to
interpret the FAA’s text, dating back to the 1950s, see Tenney, 207 F.2d
at 453; Waithaka,
2020 WL 4034997, at *6, and offers no other authority
from the relevant time period to support its position.
RITTMANN V. AMAZON.COM 29
II. There is No Valid and Enforceable Arbitration
Agreement
Although we have concluded that the AmFlex workers
are exempt from the FAA’s coverage provisions, Amazon
argues that we may nevertheless enforce the arbitration
provision pursuant to federal law and Washington state law.
We disagree.
A. Federal Law
Amazon argues that we must nevertheless enforce the
arbitration provision in accordance with federal law pursuant
to the TOS’s choice of law provision. According to
Amazon, the parties did not negotiate for the FAA to apply
only to make the FAA inapplicable, such that “[f]or the
parties’ choice-of-FAA provision to have any meaning, it
must mean more than that the FAA governs to the extent it
governs of its own force.” That circular argument fails.
Because we must give effect to the parties’ contract as
written, the FAA does not apply because the arbitration
provision is still subject to the transportation worker
exemption in § 1.
Amazon does not identify what other “applicable federal
law” would govern the arbitration provision, apart from the
FAA. It argues that “the FAA’s enforcement provisions are
a body of ‘substantive law’” that the parties are free to agree
to apply, just as they could “agree to apply the substantive
contract law of a particular state that would not apply by its
own force.”
Unlike this case, the cases Amazon cites involve
arbitration agreements to which the FAA applies. See, e.g.,
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 24–25 (1983) (“The effect of [§ 2 of the FAA] is
30 RITTMANN V. AMAZON.COM
to create a body of federal substantive law of arbitrability,
applicable to any arbitration agreement within the coverage
of the Act.” (emphasis added)). Those cases discuss the
applicability of the FAA’s substantive law in federal
diversity cases and in state court cases where courts would
typically apply state substantive law, concluding that,
consistent with the FAA’s pro-arbitration goals of
overcoming judicial hostility to arbitration, the FAA
preempts state anti-arbitration statutes. Allied-Bruce
Terminix Cos., Inc. v. Dobson,
513 U.S. 265, 271 (1995);
Southland Corp. v. Keating,
465 U.S. 1, 10, 13–14 (1984)
(concluding that the FAA preempts state laws that “require
a judicial forum for the resolution of claims which the parties
agreed to resolve by arbitration”); see also Volt Info. Scis.,
Inc. v. Bd. of Trs. of Leland Stanford Junior Univ.,
489 U.S.
468, 479 (1989) (concluding that the contracting parties are
free to agree “to abide by state rules of arbitration,” and
“enforcing those rules according to the terms of the
agreement is fully consistent with the goals of the FAA”).
They do not support Amazon’s argument that parties may
contract around the FAA’s transportation worker exemption.
Accordingly, we cannot conclude that any federal law
governs the TOS’s arbitration provision.
B. Washington State Law
Amazon next asserts that, in the event the FAA and
federal law do not apply, Washington state law governs the
arbitration provision pursuant to the TOS’s severability
provision or by applying choice-of-law principles. We
disagree.
The TOS provides that: “These Terms are governed by
the law of the state of Washington without regard to its
conflict of laws principles, except for Section 11 of this
Agreement, which is governed by the Federal Arbitration
RITTMANN V. AMAZON.COM 31
Act and applicable federal law.” Amazon contends that the
district court should have severed the choice-of-FAA
provision pursuant to this provision and, thus, Washington
law would apply to the TOS in its entirety.
Two principles of contract interpretation under
Washington law foreclose Amazon’s desired result.
Pursuant to Washington law, a court gives effect to a
severability clause if the court “can easily excise the
unconscionable provision without essentially rewriting the
contract.” McKee v. AT&T Corp., 191 P.3d 845, 861 (Wash.
2008) (en banc). Washington law also follows the contract
law principle that “any ambiguity in a contract will be
construed against the drafter.” Dennis v. Great Am. Ins. Co.,
503 P.2d 1114, 1117 (Wash. App. 1972). Applying those
principles here leads us to reject Amazon’s arguments.
Even if we assume arguendo that the provision is
susceptible to a severability analysis, 10 it does not help
Amazon. Were we to sever the choice-of-FAA clause, the
governing law provision would state that the TOS is
“governed by the law of the state of Washington without
regard to its conflict of laws principles, except for Section
11 of this Agreement.” In that case, the plain language of
the contract would prohibit applying Washington law to the
arbitration provision.
To escape that result, Amazon would have us go further
and sever the entire “except for” clause. In light of the fact
that the provision expressly treats the arbitration provision
differently, that approach would violate the principle that we
10
We fail to see how the choice-of-FAA clause that Amazon drafted
is unconscionable merely because the provision does not work as
Amazon might have intended.
32 RITTMANN V. AMAZON.COM
are not free to rewrite the contract under the guise of
severability. Lawson further argues that Amazon’s approach
runs the risk of reforming the contract if the parties did not
intend that Washington law apply to the arbitration provision
under any circumstances. We need not reach that question.
Because it is not clear that the parties intended to apply
Washington law to the arbitration provision in the event the
FAA did not apply, we construe ambiguity in the contract
against Amazon to avoid that result. 11
Amazon’s choice-of-law arguments likewise fail.
Amazon argues that Washington law presumptively governs
in the absence of a conflict of law. Washington law
recognizes that “[w]here laws or interests of concerned states
do not conflict, the situation presents a false conflict and the
presumptive local law [applies].” Shanghai Commercial
Bank Ltd. v. Kung Da Chang, 404 P.3d 62, 65 (Wash. 2017)
(internal quotation marks omitted). Even if we assume that
this principle applies, we do not see what it proves. As we
have explained, we cannot sever the clause that applies
Washington law to the contract “except for Section 11” from
the governing law provision without impermissibly
rewriting the contract. Amazon cites no authority that would
allow us to conclude that the presumption in favor of local
law overcomes express contractual language that precludes
its application.
Because there is no law that governs the arbitration
provision, we agree with the district court that there is no
11
We recognize that the First Circuit’s decision in Waithaka reached
a different result in interpreting identical contract terms. However, it is
not clear that the court applied the Washington state law principles of
contract interpretation that we identify here. See Waithaka, 2020 WL
4034997, at *12 & n.13. Applying those principles, we are not persuaded
by Amazon’s severability arguments.
RITTMANN V. AMAZON.COM 33
valid arbitration agreement. We therefore reject Amazon’s
alternative bases to compel arbitration.
CONCLUSION
We hold that the AmFlex delivery providers in this case
are transportation workers engaged in interstate commerce
and are thus exempt from the FAA’s enforcement provisions
pursuant to § 1. We further hold that the parties did not enter
into a valid agreement to arbitrate and that there is no other
ground upon which we may enforce the arbitration
provision. We therefore affirm the district court’s denial of
Amazon’s motion to compel arbitration.
AFFIRMED.
BRESS, Circuit Judge, dissenting:
The Federal Arbitration Act (FAA) broadly allows
agreements to arbitrate, but contains a narrow exemption for
certain transportation workers: “[N]othing herein contained
shall apply to contracts of employment of seamen, railroad
employees, or any other class of workers engaged in foreign
or interstate commerce.” 9 U.S.C. § 1. Like “seamen” and
“railroad employees,” are Amazon AmFlex workers who
deliver packages, groceries, and restaurant food locally and
intrastate using their cars, bicycles, and public transportation
a “class of workers engaged in foreign or interstate
commerce”? The question is a reasonably close one that is
made difficult by the need to apply somewhat opaque,
century-old statutory language to a technology-based
convenience of modern life. But on the metrics that
matter—statutory text, precedent, and the workability of the
competing regimes under the FAA’s contemplated
34 RITTMANN V. AMAZON.COM
objectives—I think Amazon has the better of the argument,
in some instances by a leg and in others by a length.
In my view, for a delivery worker to be “engaged in”
interstate commerce under the FAA, he must belong to a
“class of workers” that crosses state lines in the course of
making deliveries. The majority’s contrary reading is less
supported in the statutory text and invites difficult line-
drawing problems. Seeking to resist the logical implication
of its holding—under which the FAA’s narrow
transportation worker exemption could broadly include
anyone who delivers goods between any two locations—the
majority constructs a new FAA doctrine under which the
exemption turns on the supposed “continuity” of the
interstate commerce and where items “come to rest.”
Concepts such as these proved highly vexing in the
Commerce Clause context when tried over a hundred years
ago. I am concerned they will fare no better here, leading to
perplexing and costly factual inquiries that in turn create
uncertainty as to whether a dispute is arbitrable. That is
contrary to the FAA’s objective that the intended efficiencies
of arbitration should not be overwhelmed by the inefficiency
of litigation over whether a dispute is arbitrable.
I respectfully dissent because I would have held that the
district court erred in denying Amazon’s motion to compel
arbitration.
I
A
It is helpful to begin by considering the § 1 exemption
for transportation workers in the context of the FAA as a
whole. Enacted in 1925, the FAA “seeks broadly to
overcome judicial hostility to arbitration agreements.”
RITTMANN V. AMAZON.COM 35
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118 (2001)
(quoting Allied-Bruce Terminix Cos., Inc. v. Dobson,
513 U.S. 265, 272 (1995)). Section 2 is the “primary
substantive provision” of the Act. AT&T Mobility LLC v.
Concepcion,
563 U.S. 333, 339 (2011) (quoting Moses H.
Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 24
(1983)). Section 2 provides in relevant part:
A written provision in any maritime
transaction or a contract evidencing a
transaction involving commerce to settle by
arbitration a controversy thereafter arising
out of such contract or transaction . . . shall
be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity
for the revocation of any contract.
9 U.S.C. § 2. This provision “establishes ‘a liberal federal
policy favoring arbitration agreements.’” Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1621 (2018) (quoting Moses H. Cone
Mem’l
Hosp., 460 U.S. at 24). Section 1 creates a limited
exemption to § 2. Under § 1, the FAA does not apply to
“contracts of employment of seamen, railroad employees, or
any other class of workers engaged in foreign or interstate
commerce.”
The Supreme Court’s decision in Circuit City Stores, Inc.
v. Adams, 532 U.S. 105 (2001), addressed the relationship
between these two provisions. In Circuit City, our court had
held that § 1 exempted from the FAA “all contracts of
employment.”
Id. at 109.
The Supreme Court disagreed,
holding that § 1 “exempts from the FAA only contracts of
employment of transportation workers.”
Id. at 119. I will
discuss Circuit City’s specific reasoning as I work through
my analysis. But the point to emphasize up front is that
36 RITTMANN V. AMAZON.COM
based on the FAA’s “plain meaning” and historical
considerations, the Supreme Court in Circuit City confirmed
what the language and structure of the FAA connotes,
namely, that § 2 must be given an “expansive reading,”
whereas the § 1 transportation worker exemption should “be
afforded a narrow construction” and a “precise reading.”
Id.
at 113, 118–19.
Raef Lawson, the named plaintiff at issue here, signed
up to work as a local delivery provider for Amazon through
the Amazon Flex (AmFlex) app. AmFlex operates in select
cities in the United States. AmFlex workers deliver items
for Amazon and local merchants using their personal
vehicles, bicycles, or public transportation. Lawson’s
agreement with Amazon contained an arbitration clause.
Lawson could have opted out of arbitration by sending an
email to Amazon, as other AmFlex workers did. But
Lawson did not do this. Instead, he now argues he may bring
his wage-related claims against Amazon in court on the
theory that he is exempt from the FAA altogether under § 1.
The majority asserts in passing that “AmFlex delivery
providers occasionally cross state lines to make deliveries.”
Maj. Op. 6. But the majority opinion does not turn on this.
And the record contains only one example of such interstate
delivery work, consisting of a single AmFlex delivery
provider who worked in the “New York City area” and once
delivered a package from Brooklyn to New Jersey. Plaintiffs
do not allege that either Lawson or the typical AmFlex
delivery provider crosses state lines when making deliveries.
As a “class of workers,” AmFlex providers thus do not move
between States in the course of their duties.
Instead, the majority holds that AmFlex workers like
Lawson are exempt from the FAA because Ҥ 1 exempts
transportation workers who are engaged in the movement of
RITTMANN V. AMAZON.COM 37
goods in interstate commerce, even if they do not cross state
lines.” Maj. Op. 20–21. In the majority’s view, AmFlex
workers fall within the § 1 exemption because “the Amazon
packages they carry are goods that remain in the stream of
interstate commerce until they are delivered.” Id. at 21.
Because “AmFlex drivers’ transportation of goods wholly
within a state are still a part of a continuous interstate
transportation,” the majority holds that “those drivers are
engaged in interstate commerce for § 1’s purposes.”
Id.
at 22.
In my respectful view, this is not the best reading of the
FAA. And it unfortunately creates difficult problems of
application, as well as inequities among delivery workers
who are similarly situated. 1
1
The majority also affirms the district court’s determination that
because the FAA does not apply, the entire arbitration provision in the
parties’ contract is invalid. Maj. Op. 31–33. Because I conclude the
FAA does apply, I do not discuss this secondary issue in detail, except
to note that to my mind, the district court’s conclusion was premature. I
do not believe the district court or the majority provide a sufficient basis
for concluding that the parties would have scrapped their agreement to
arbitrate altogether if they knew the FAA could not apply (state law
could have governed the arbitration provision to which the parties clearly
agreed). I would have remanded for further proceedings on this issue
had I determined the FAA did not apply. In concluding otherwise, Maj.
Op. 32 n.11, the majority parts from the First Circuit on this point. In
Waithaka v. Amazon.com, Inc., — F.3d —, 2020 WL 4034997, at *11
(1st Cir. 2020), and after holding that the FAA did not apply to a similar
contractual provision, the court analyzed whether arbitration could “still
be compelled pursuant to state law.”
Id. Although Waithaka ultimately
held it could not, the majority does not engage in such an analysis and
instead concludes “there is no law that governs the arbitration provision.”
Maj. Op. 32.
38 RITTMANN V. AMAZON.COM
B
To answer the central question in this case, the place to
start is the text of § 1. AmFlex workers are not “seamen” or
“railroad employees,” so if they are exempt from the FAA,
it is because they fall within the residual clause of “any other
class of workers engaged in foreign or interstate commerce.”
There are three basic options for how to interpret the residual
clause in the case of delivery workers:
• Option 1: The residual clause covers any
delivery person transporting anything between
any two points. By this theory, because any
delivery has some connection to interstate
commerce, itself a broad concept under modern
Commerce Clause doctrine, see Gonzales v.
Raich, 545 U.S. 1 (2005); Wickard v. Filburn,
317 U.S. 111 (1942), it is fair to treat anyone
making deliveries as “engaged in” interstate
commerce. Even when a delivery is purely
intrastate, that delivery must inevitably have an
interstate nexus.
• Option 2: The residual clause does not require
delivery workers to cross state lines in the course
of their deliveries, but it also does not cover
absolutely anyone who delivers anything (Option
1 above). Instead, it covers only certain
intrastate delivery workers depending upon some
other factors we identify, such as the nature of the
company they work for, the nature of the goods
that are transported, and/or whether the goods are
delivered as part of a “continuous” interstate
transportation. The majority follows Option 2.
RITTMANN V. AMAZON.COM 39
• Option 3: Delivery persons are a “class of
workers engaged in foreign or interstate
commerce” if the class of workers crosses state
or international lines in the course of their
deliveries. This is Amazon’s approach.
Which of these three options is the best reading of the
statute?
We can begin by eliminating Option 1, because it faces
serious resistance from Supreme Court precedent. Again,
Option 1 would treat every delivery person as part of a “class
of workers engaged in foreign or interstate commerce.” This
would seemingly include, to give examples nearer to the
time of the FAA’s enactment, a newspaper boy who delivers
the evening post around his neighborhood, or the local
milkman. The Supreme Court’s decision in Circuit City
confirms this broad reading of the residual clause is
untenable. It is important to see why.
First, in holding that not all employment contracts fall
within the § 1 exemption, Circuit City relied heavily on the
difference between the statutory phrases “engaged in foreign
or interstate commerce” (the § 1 exemption) and “involving
commerce” (the broad § 2 FAA coverage provision). The
Supreme Court explained that as a general matter, “Congress
uses different modifiers to the word ‘commerce’ in the
design and enactment of its statutes.” Circuit City, 532 U.S.
at 115. These different modifiers allow Congress to calibrate
the reach of its legislation.
Id.
According to Circuit City, “considering the usual
meaning of the word ‘involving,’ and the pro-arbitration
purposes of the FAA,” the phrase “involving commerce” in
§ 2 “‘signals an intent to exercise Congress’ commerce
power to the full.’”
Id. at 115 (quoting Allied-Bruce,
40 RITTMANN V.
AMAZON.COM
513 U.S. at 277). Section 1, however, is different. “Unlike”
the phrase “involving commerce,” “the specific phrase
‘engaged in commerce’ [is] understood to have a more
limited reach.”
Id. at 115–16 (citing Jones v. United States,
529 U.S. 848, 855 (2000);
Allied-Bruce, 513 U.S. at 273;
United States v. Am. Bldg. Maint. Indus.,
422 U.S. 271, 279–
80 (1975)).
It was on this basis that Circuit City concluded that “[t]he
plain meaning of the words ‘engaged in commerce’ is
narrower than the more open-ended formulations ‘affecting
commerce’ and ‘involving commerce.’”
Id. at 118.
The
premise of Option 1 above is that “engaged in foreign or
interstate commerce” should cover any delivery person
because at some level, every delivered good has an interstate
nexus. Option 1 encounters significant difficulty in the face
of Circuit City because unlike the modifier “involving,”
“engaged in” does not signal Congress’ intent to regulate to
the fullest extent of the Commerce Clause.
Id. at 115–16,
118.
Second, Option 1 runs headlong into Circuit City’s
approach to the residual clause in § 1. Circuit City explained
that because “the residual phrase” “any other class of
workers engaged in foreign or interstate commerce”
“follow[s] in the same sentence[] [an] explicit reference to
‘seamen’ and ‘railroad employees,’” “[t]he wording of § 1
calls for the application of the maxim ejusdem generis.”
Id.
at 114.
Under that venerable canon, which reflects how
language is commonly used, “[w]here general words follow
specific words in a statutory enumeration, the general words
are construed to embrace only objects similar in nature to
those objects enumerated by the preceding specific words.”
Id. at 114–15 (alteration in original) (quoting 2A N. Singer,
Sutherland on Statutes and Statutory Construction § 47.17
RITTMANN V. AMAZON.COM 41
(1991)); see also Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 199 (2012).
Based on this “rule of construction,” Circuit City
explained that “the residual clause should be read to give
effect to the terms ‘seamen’ and ‘railroad employees,’ and
should itself be controlled and defined by reference to the
enumerated categories of workers which are recited just
before it.” 532 U.S. at 115. As noted above, the issue in
Circuit City was whether the residual clause should cover
any employment contract.
Id. at 109.
The answer was “no”
because “[c]onstruing the residual phrase to exclude all
employment contracts fails to give independent effect to the
statute’s enumeration of the specific categories of workers
which precedes it.”
Id. at 114.
The problem, in other words,
was that “there would be no need for Congress to use the
phrases ‘seamen’ and ‘railroad employees’ if those same
classes of workers were subsumed within the meaning of the
‘engaged in . . . commerce’ residual clause.”
Id.
We can now see the second reason why the broad
Option 1 above is, at the very least, in serious tension with
Circuit City. As in Circuit City, if the residual clause
covered anyone transporting anything over any distance, it
is unclear why Congress would have specifically called out
“seamen” or “railroad employees” in the statute. At the very
least, the basis for the more stilted language in § 1 would be
much more difficult to understand if the residual clause
covered anyone transporting anything between any two
locations.
C
So what is the right answer here? The majority opinion
is explicit that it is not purporting to adopt Option 1. It
makes clear, for example, that delivery persons who deliver
42 RITTMANN V. AMAZON.COM
food (through services like Doordash and Postmates) do not
fall within the § 1 exemption. Maj. Op. 23–25. Instead, in
holding that § 1 covers intrastate delivery workers who do
not cross state lines in their deliveries but who transport
packages that have previously traveled from out of state, the
majority identifies certain features of AmFlex workers that
supposedly bring them within § 1, yet render them different
from just any delivery person. This is Option 2 in my
typology above.
In later sections, I discuss the problems with the
majority’s interpretation. In this section, I explain why I
think Amazon’s interpretation (Option 3 above) is the most
supportable one under the text of the FAA. Though the
statute does not clearly answer the question before us, the
language of § 1 and the problems with the majority’s
alternative interpretation lead me to conclude that Amazon’s
reading is the most justified.
Once again, the statute provides that “nothing herein
contained shall apply to contracts of employment of seamen,
railroad employees, or any other class of workers engaged in
foreign or interstate commerce.” 9 U.S.C. § 1. In the context
of the FAA in particular, the Supreme Court has instructed
that it is “a fundamental canon of statutory construction that
words generally should be interpreted as taking their
ordinary meaning at the time Congress enacted the statute.”
New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019)
(quotation marks and alterations omitted). And in discerning
this ordinary meaning, courts may consider dictionary
definitions from the relevant time.
Id.
As the majority agrees, Maj. Op. 11, dictionaries from
the period when Congress enacted the FAA defined
“engaged” as “[o]ccupied” or “employed.” Engaged,
Webster’s New International Dictionary 725 (1st ed. 1909);
RITTMANN V. AMAZON.COM 43
see also Engaged, Webster’s Collegiate Dictionary 333 (3d
ed. 1919) (same); Engagement, Black’s Law Dictionary (2d
ed. 1910) (defining “engagement” as “[a] contract” or
“obligation”). “Interstate commerce,” meanwhile, was
defined as “[t]raffic, intercourse, commercial trading, or the
transportation of persons or property between or among the
several states of the Union, or from or between points in one
state and points in another state.” Interstate Commerce,
Black’s Law Dictionary (2d ed. 1910); see also Interstate
Commerce, Black’s Law Dictionary (3d ed. 1933) (same).
Putting these definitions together most reasonably
indicates that the § 1 exemption for a class of workers
“engaged in . . . interstate commerce” applies to workers
“[o]ccupied” or “employed” in the “transportation of . . .
property . . . between points in one state and points in
another state.” Engaged, Webster’s New International
Dictionary 725 (1st ed. 1909); Interstate Commerce, Black’s
Law Dictionary (2d ed. 1910). In other words, a person who
is “engaged in . . . interstate commerce” is one who is
employed to do the thing that is the subject of the
engagement, here “foreign or interstate commerce.” With its
focus on what workers are “employed” or “occupied” in, the
statute thus most probably requires us to examine the work
that the workers as a “class” perform.
At this point, we encounter a very reasonable
disagreement between the parties. Amazon says that the
work AmFlex delivery persons are “engaged in” is local
delivery services. Plaintiff, by contrast, argues that the
relevant work is the “last leg” intrastate delivery of packages
that have previously traveled from out of state. Both are fair
characterizations of work that AmFlex workers do. But I
think Amazon’s characterization is the better fit under this
statute.
44 RITTMANN V. AMAZON.COM
Section 1 is focused on whether the “class of workers” is
“engaged in foreign or interstate commerce.” As a matter of
common parlance, and remembering Circuit City’s guidance
on the narrowness of “engaged in,” a “class” of delivery
workers would more commonly “engage in” (i.e., be
employed in) “interstate commerce” by transporting goods
across state lines. See Wallace v. Grubhub Holdings, Inc.,
— F.3d —, 2020 WL 4463062, at *3 (7th Cir. 2020) (“[T]o
fall within the exemption, the workers must be connected
not simply to the goods, but to the act of moving those goods
across state or national borders.”). Plaintiff’s
characterization of AmFlex workers’ “engagement” as
workers delivering goods from out of state loses sight of the
fact that the out-of-state nature of the goods is irrelevant to
the actual work the AmFlex workers perform. While no one
doubts that Amazon is of course engaged in interstate
commerce (if that were the only question this would be a
very easy case), the interstate provenance of Amazon
packages does not affect the actual work that local AmFlex
workers do. See
id. (explaining that § 1 turns on “what the
worker does” and not “where the goods have been”).
Moreover, and as discussed in greater detail below,
AmFlex workers do not just deliver packages. They also
deliver groceries and restaurant meals from local businesses.
Further, AmFlex only operates in select cities and AmFlex
workers service only their local markets. All of this
underscores that AmFlex workers are most naturally
characterized as local delivery persons rather than
“interstate” workers.
We can see how plaintiff’s (and the majority’s)
interpretation of the FAA is less in accord with common
language usage by applying their same interpretation to
“foreign commerce.” See 9 U.S.C. § 1 (“any other class of
RITTMANN V. AMAZON.COM 45
workers engaged in foreign or interstate commerce”)
(emphasis added). Imagine someone orders a coffee grinder
through Amazon’s website. The coffee grinder is
manufactured in China, travels across the Pacific Ocean on
a container ship, and arrives at the Port of Long Beach. A
truck driver then hauls it fifty miles north to an Amazon
warehouse in the San Fernando Valley. Then an AmFlex
worker picks it up from the warehouse and delivers it by
bicycle to an apartment a few miles away.
Would we say that this AmFlex worker is “engaged in
foreign commerce”? I doubt it. But by the reasoning of the
majority opinion, the answer must be yes. Just as AmFlex
workers carry “goods that remain in the stream of interstate
commerce until they are delivered,” Maj. Op. 21 (emphasis
added), the same would need to be true of goods that traveled
in foreign commerce as well. 9 U.S.C. § 1. In short, § 1’s
use of the modifier “engaged in” favors Amazon over
plaintiff. The majority justifies its interpretation by saying
that AmFlex drivers are “a part of a continuous interstate
transportation.” Maj. Op. 22. But that is not the language
the statute uses. 2
2
It is also not enough for the majority to rely on a dictionary
definition of the word “commerce” and conclude that an AmFlex worker
is “not ‘engaged in commerce’ any less than a worker tasked with
delivering goods between states.” Maj. Op. 12. No one doubts that
AmFlex workers are “engaged in commerce.” But the statutory text
refers to a “class of workers engaged in foreign or interstate commerce.”
In response, the majority points out that the FAA defines “commerce” to
include foreign or interstate commerce. Maj. Op. 19 (citing 9 U.S.C.
§ 1). And the majority thus “see[s] no way to meaningfully distinguish
between the word ‘commerce’ used in § 2”—in the phrase “involving
commerce”—and “the ‘foreign or interstate commerce’ referenced in
§ 1.” Id. This is all true enough. But it only confirms, as I discussed
above, that what distinguishes “engaged in foreign or interstate
46 RITTMANN V. AMAZON.COM
The statute’s references to “seamen” and “railroad
employees” support Amazon as well, at least more than they
do the plaintiff. Neither of these classes of workers is
defined in the statute with reference to the provenance of the
goods (or people) they transport. Instead, the FAA casts
them at a high level of generality, referring to the broad type
of work they perform. Amazon’s characterization of
AmFlex workers’ “engagement” is thus more consistent
with the way the statute otherwise treats the “class[es] of
workers” that are specifically enumerated.
In addition, and as noted above, Circuit City explained
that “the residual clause should be read to give effect to the
terms ‘seamen’ and ‘railroad employees’ and should itself
be controlled and defined by reference to the enumerated
categories of workers which are recited just before it.”
532 U.S. at 115. With a residual clause that applies to
workers “engaged in foreign or interstate commerce,” it is
more appropriate to construe “seamen” and “railroad
employees” as persons who operate in a cross-boundary
capacity. The terms “seamen” and “railroad employees” are
not only capable of that reading, such workers commonly (if
not prototypically) do “engage in foreign or interstate
commerce” in that manner. See Scalia & Garner, Reading
Law 208 (2012) (using ejusdem generis, courts “[c]onsider
the listed elements, as well as the broad term at the end, and
ask what category would come into the reasonable person’s
mind”). Indeed, when it comes to the transportation of goods
in particular, which is what AmFlex providers deliver,
“seamen” and “railroad employees” traditionally operate
commerce” in § 1, and “involving commerce” in § 2, are the modifiers
“engaged in” and “involving.” And that is the distinction the Supreme
Court identified in Circuit City as supporting a narrow construction of
§ 1.
See 532 U.S. at 115.
RITTMANN V. AMAZON.COM 47
across international and state boundaries (with a seaman
more prone to foreign commerce and a railroad employee
more likely to be engaged in interstate commerce, a
parallelism that is in fact reflected in the text of § 1).
I recognize that not every “seaman” or “railroad
employee” would necessarily be “engaged in foreign or
interstate commerce.” But that only goes to show that
Congress in specifically exempting these particular
“class[es] of workers” wanted to cover anyone who could
meet that description. It does not change how we approach
the meaning of the residual clause. We can always come up
with examples that fit a statutory term in isolation but that
largely defy its most common understanding in the context
of the statutory scheme as a whole. Imagine a statute that
said it was unlawful to bring any “knives, daggers, swords,
or any other similar object onto an airplane.” As a category,
this most reasonably refers to objects that are dangerous
because they are sharp. If someone brought a dull blade onto
an airplane, it would likely still be treated as a “knife” and
the statute would cover it. But that does not mean the
residual clause would encompass things that are not
traditionally sharp.
The linguistic intuition behind ejusdem generis is that
terms in a statutory list that culminates in a residual clause
should be construed in their most natural, categorical
manners, in a way that reasonably reflects the boundaries the
residual clause creates. E.g., Yates v. United States, 574 U.S.
528, 545–46 (2015); CSX Transp., Inc. v Ala. Dep’t of
Revenue,
562 U.S. 277, 295 (2011). The statutory text in the
FAA supports this approach because it refers to workers by
their “class,” reflecting the same paradigmatic approach as
ejusdem generis itself. In this case, if the statute excluded
48 RITTMANN V. AMAZON.COM
“seamen, railroad employees, and local delivery persons,” it
seems clear that one is quite a bit less like the others.
My interpretation of the FAA aligns with the recent
decision in Wallace v. Grubhub Holdings, Inc., — F.3d —,
2020 WL 4463062 (7th Cir. 2020), in which the Seventh
Circuit held that § 1 did not cover Grubhub delivery drivers.
There, the Seventh Circuit rejected the plaintiffs’ theory that
they came within the § 1 exemption because “they carry
goods that have moved across state and even national lines.”
Id. at *3
. The Seventh Circuit held that “to fall within the
exemption, the workers must be connected not simply to the
goods, but to the act of moving those goods across state or
national borders.”
Id. (emphasis added); see also
id. at *2
(“[W]e consider whether the interstate movement of goods
is a central part of the class members’ job description.”);
id.
at *3
(“To show that they fall within this exception, the
plaintiffs had to demonstrate that the interstate movement of
goods is a central part of the job description of the class of
workers to which they belong.”).
Finally, Amazon’s reading also yields an important
benefit: it is relatively easy to apply. All we need to know
is the extent to which delivery workers cross state or
international lines in the course of their deliveries. The
Supreme Court has cautioned against introducing
“complexity and uncertainty [into] the construction of § 1”
because it “undermin[es] the FAA’s proarbitration
purposes,” “‘breeding litigation from a statute that seeks to
avoid it.’” Circuit City, 532 U.S. at 123 (quoting Allied-
Bruce, 513 U.S. at 275). Amazon’s reading of the FAA is
much more consistent with this objective. The majority’s
interpretation, by contrast, foments substantial problems of
practical application and produces inequities among
similarly situated workers, issues I discuss below.
RITTMANN V. AMAZON.COM 49
II
A
But what about the majority’s differing interpretation?
Again, the majority opinion rejects the Option 1 approach
that all delivery workers are exempted from the FAA
because the majority insists that persons who deliver food
for restaurants through Doordash and similar services fall
outside § 1. Maj. Op. 23–25. Instead the majority goes with
Option 2: some local delivery providers working intrastate
are within § 1, and we can discern which ones through
application of factors we identify. In this case, the
distinguishing features the majority identifies seem to be as
follows:
• AmFlex workers work for Amazon: AmFlex
workers are affiliated with Amazon, a large
company devoted to working with its partners to
transport items from all over the world that its
customers purchase. Maj. Op. 21. Unlike
restaurant delivery workers, “AmFlex workers
complete the delivery of goods that Amazon
ships across state lines and for which Amazon
hires AmFlex workers to complete the delivery.”
Id. at 24.
• The interstate transportation is “continuous,” and
the transported packages do not “come to rest”:
“AmFlex drivers’ transportation of goods wholly
within a state are still a part of a continuous
interstate transportation.” Id. at 22 23. “The
packages are not held at warehouses for later
sales to local retailers.”
Id. at 23.
“Amazon
packages do not ‘come to rest’ at Amazon
50 RITTMANN V. AMAZON.COM
warehouses, and thus the interstate transactions
do not conclude at those warehouses.”
Id. at 23.
• The packaged goods are not transformed into
something else: restaurant delivery workers are
different because “prepared meals from local
restaurants are not a type of good that [is]
indisputably part of the stream of commerce.”
Id.
at 24 (quotations omitted). This presumably
would be the case because “[i]ngredients
contained in the food that [is] ultimately
delivered from restaurants ended their interstate
journey when they arrived at the restaurant where
they were used to prepare meals.” Levin v.
Caviar, Inc., 146 F. Supp. 3d 1146, 1154 (N.D.
Cal. 2015); see also Maj. Op. 23–25 (citing Levin
in explaining why Postmates and Doordash
drivers do not fall within § 1).
• The nature of the transaction between Amazon
and its own customers: “The interstate
transactions between Amazon and the customer
do not conclude until the packages reach their
intended destinations.”
Id. at 23.
If we were drafting the FAA anew, some of these factors
may well reflect reasonable bases for distinguishing AmFlex
workers from other delivery persons. But the problem I have
with the majority’s analysis is that the factors it identifies
have no apparent basis in the statute, which focuses on the
work that a “class of workers” performs. See Wallace, 2020
WL 4463062, at *3. Section 1 exempts “contracts of
employment of seamen, railroad employees, or any other
class of workers engaged in foreign or interstate commerce.”
9 U.S.C. § 1. Its coverage does not depend on the company
RITTMANN V. AMAZON.COM 51
for whom the delivery person works. The statute likewise
does not vary in application depending on the nature of the
transaction between the underlying buyer and seller, i.e.,
whether a good is delivered as part of a continuous journey
from seller to customer, or has a retail stop in between, or
whether it is a consumer transaction at all. Nor does the
statutory text embrace a distinction between goods that
“come to rest” after further transformation into something
else.
The majority’s Option 2 approach creates significant
problems of workability and fairness, as I will detail below
in Section III. But from a pure statutory interpretation
perspective, what is important to see is that because the
majority’s limiting factors are not based in the statutory text
(and are certainly not required by it), one can come up with
alternative “limiting” factors that are not limiting at all, but
that still have an equally plausible purchase on the language
Congress drafted.
A good example is retail sales. The majority deems it
significant that “[t]he packages are not held at warehouses
for later sales to local retailers,” but are part of a
“continuous” delivery from Amazon to consumers. Maj.
Op. 22–23. But if the statutory text “support[s] the
conclusion that transportation workers need not cross state
lines to be considered ‘engaged in foreign or interstate
commerce’ pursuant to § 1,” as the majority holds, id. at 11,
what difference does it make if a delivery driver picks up a
good from an Amazon warehouse or from a separate
retailer? Section 1 focuses on the worker. And in both cases,
the worker is transporting to a consumer a good that
originated out of state. Indeed, the record indicates that
Amazon “provides fulfillment services for third-party sellers
who store inventory in Amazon Fulfillment Centers and sell
52 RITTMANN V. AMAZON.COM
their products on Amazon’s websites.” It is unclear how the
interstate transaction is “continuous” in these circumstances
when Amazon itself is functioning as a retailer that keeps an
“inventory” at its warehouses.
Another example is the majority’s focus on the
“package” that the end-use customer ordered as the relevant
unit for analysis under the FAA. In the majority’s view, the
package does not “come to rest” at an Amazon warehouse
because it is only temporarily housed there, untransformed,
until an AmFlex worker picks it up.
Id. at 23.
By contrast,
the majority suggests that ingredients for meals that
restaurants prepare apparently do “come to rest” because the
“prepared meals” themselves are not “indisputably part of
the stream of commerce.”
Id. at 24 (quotations omitted).
The majority opinion’s line-drawing depends on its
selection of the relevant “unit” for commerce purposes. But
once again, the statute does not tell us how to make that
selection either. Imagine a tomato is transported from out of
state to a restaurant and then used to make sauce for a pizza.
Why is the later intrastate delivery of the pizza not also
recognized as the final leg of an interstate delivery of the
tomato? The customer wants a pizza of which the sauce is
an indispensable ingredient and but for which the pizza
would not be ordered. For commerce purposes, why focus
on the local preparation of the completed pizza instead of
recognizing that as a sum of its parts, the pizza is the product
of goods that moved in interstate commerce? The text of the
FAA does not help us choose between these various options.
Or we could look at it another way: imagine an Amazon
customer orders a jar of pizza sauce through Amazon’s
website. See https://www.amazon.com/s?k=pizza+sauce&r
ef=nb_sb_noss_2 (selection of pizza sauces available on
Amazon) (last visited August 11, 2020). If the relevant
RITTMANN V. AMAZON.COM 53
“interstate commerce” unit under the FAA were pallets of
jars that are shipped to an Amazon warehouse and not the
individual jars of sauce, then why doesn’t the jar of sauce
“come to rest” at the warehouse once labor is applied to it by
removing the jar from the larger crate in which it was
transported interstate?
The problems become only more difficult when we
consider that the customer could order the same exact thing,
wholly untransformed, from Amazon and the pizza shop. If
Cherry Coke is manufactured out of state, what difference
does it make from the perspective of the “class of workers”
if the customer orders cans of Cherry Coke from the pizza
shop or Amazon? See https://www.amazon.com/s?k=cherr
y+coke&ref=nb_sb_noss_2 (selection of Cherry Coke
options on Amazon website) (last visited August 11, 2020).
The point here is that if one broadens or narrows the
lenses of the limiting factors that the majority identifies as
part of its Option 2 approach, one can treat either more or
fewer delivery workers as falling within § 1. The statutory
text supports none of this line-drawing any more than any
other, which is quite afield of the statute’s focus on whether
the work that the “class of workers” performs renders the
“class” “engaged in foreign or interstate commerce.”
9 U.S.C. § 1.
What this means is that in principle, the majority’s
Option 2 is no different than Option 1. But for the majority’s
own selection of factors it deems relevant to “interstate
commerce,” the majority’s approach equally permits any
delivery person to fall within § 1. And that is the expansive
regime that faces the greatest resistance under the text of § 1,
as construed in Circuit City. See Wallace, 2020 WL
4463062, at *3 (rejecting interpretation of § 1 that “would
sweep in numerous categories of workers whose occupations
54 RITTMANN V. AMAZON.COM
have nothing to do with interstate transport”). It would also
stretch the supposedly “narrow” and “precise” § 1
exemption considerably, contrary to the FAA’s overarching
preference for arbitration. Circuit
City, 532 U.S. at 118, 119.
B
To reach its contrary interpretation of the FAA, the
majority opinion spends considerable effort examining
language in other statutes: the Federal Employers’ Liability
Act (FELA), the Clayton Act, and the Robinson-Patman Act.
Maj. Op. 15–19. I do not think these other statutes can
overcome the more natural import of the FAA’s text,
structure, and purpose.
The Supreme Court has cautioned that “[t]he phrase ‘in
commerce’ does not, of course, necessarily have a uniform
meaning whenever used by Congress.” Am. Bldg., 422 U.S.
at 277. Circuit City made this same point about undue
reliance on other “statutory jurisdictional formulations”
when interpreting the FAA.
See 532 U.S. at 118 (citing Am.
Bldg., 422 U.S. at 277). Instead, Circuit City instructed that
courts must “construe the ‘engaged in commerce’ language
in the FAA with reference to the statutory context in which
it is found and in a manner consistent with the FAA’s
purpose.”
Id. It was that “statutory context” and “purpose”
that the Supreme Court held “compel[led]” the conclusion
“that the § 1 exclusion provision be afforded a narrow
construction.”
Id.
FELA and the Clayton and Robinson-Patman Acts do
not share the FAA’s text, “context,” or “purpose.” The text
of FELA (as it existed at the time of the FAA’s enactment)
provided that “every common carrier by railroad while
engaging in commerce between any of the several States . . .
shall be liable in damages to any person suffering injury
RITTMANN V. AMAZON.COM 55
while he is employed by such carrier in such commerce.”
45 U.S.C. § 51 (1908). This statute is oriented more around
the work of the “common carrier.” And it lacks the FAA’s
specific structure and phrasing, in particular the references
to “seamen” and “railroad employees” that give the § 1
residual clause some of its meaning. See Circuit City,
532 U.S. at 115. It is therefore hard to understand the First
Circuit’s conclusion, on which the majority relies, that the
language of FELA and the FAA are “nearly identical.”
Waithaka v. Amazon.com, Inc., — F.3d —,
2020 WL
4034997, at *6 (1st Cir. 2020). Indeed, the reference to
“commerce” in both FELA and the antitrust statutes does not
appear in a residual clause at all, much less in an exception
to a general coverage provision. See 15 U.S.C. § 13(a)
(Robinson-Patman Act); 15 U.S.C. §§ 14, 18 (Clayton Act);
45 U.S.C. § 51 (Federal Employers’ Liability Act).
The identified purposes of these other statutes are also
not comparable to the FAA’s recognized objectives. FELA
is a “broad remedial statute” that protects injured railroad
workers. Atchison, Topeka & Santa Fe Ry. Co. v. Buell,
480 U.S. 557, 562 (1987). For FELA, the Supreme Court
has thus “adopted a ‘standard of liberal construction in order
to accomplish [Congress’] objects.’”
Id. (alteration in
original) (quoting Urie v. Thompson,
337 U.S. 163, 180
(1949)). FELA is therefore “not to be narrowed by refined
reasoning” but “is to be construed liberally to fulfill the
purposes for which it was enacted.” Jamison v.
Encarnacion,
281 U.S. 635, 640 (1930), superseded by
statute on other grounds as recognized in McDermott Int’l,
Inc. v. Wilander,
498 U.S. 337, 348 (1991).
The majority relies on the First Circuit’s unsupported
statement that “there is no indication that the remedial
purpose of the FELA affected the Supreme Court’s
56 RITTMANN V. AMAZON.COM
conclusion” about which workers FELA covered. Maj. Op.
15 n.2 (quoting Waithaka, 2020 WL 4034997, at *8). But
when the Supreme Court generally assigns a “liberal”
construction to a statute based on its perceived “broad
remedial” purposes, as it did in FELA, one would expect that
interpretation to carry throughout the statute, and that
reflects the import of some of the FELA cases the majority
cites. The more important observation from the FELA cases
is that there is no indication, within an otherwise “broad
remedial” statute, that the Supreme Court gave FELA’s most
closely analogous statutory language a “narrow” and
“precise” construction, as we are required to do for the FAA
§ 1 exemption. Circuit
City, 532 U.S. at 118–19.
I also respectfully disagree with the majority’s assertion
that there is a “longstanding reliance on [FELA] to interpret
the FAA’s text.” Maj. Op. 28 n.9. What the majority cites
for this proposition is the First Circuit’s very recent opinion
in Waithaka and Tenney Eng’g, Inc. v. United Elec. Radio &
Mach. Workers of Am., 207 F.2d 450 (3d Cir. 1953), in
which the Third Circuit stated without explanation that
Congress “must have had” FELA “in mind” when drafting
the FAA.
Id. at 453. For its part, the Supreme Court has
never directed that the FAA be interpreted in light of FELA.
And if that were the “longstanding” law, current doctrine
under the FAA would likely look completely different than
it does today.
The context and identified purposes of the Clayton and
Robinson-Patman Acts are equally inapt. These antitrust
statutes likewise have entirely different objectives, such as
thwarting monopolistic practices and price discrimination
(notably, the First Circuit in Waithaka did not rely on them
to the extent the majority does here). These antitrust regimes
stand in contrast to § 1 of the FAA, which is a “narrow” and
RITTMANN V. AMAZON.COM 57
“precise” exemption to Congress’s otherwise “expansive”
§ 2 coverage provision seeking to “overcome judicial
hostility to arbitration agreements.” Circuit City, 532 U.S.
at 118 (quoting
Allied-Bruce, 513 U.S. at 272).
It is also not apparent that these other statutes the
majority cites even support the majority’s approach to the
FAA. In the case of FELA, the majority cites Shanks v.
Delaware, Lackawanna & Western Railroad Co., 239 U.S.
556 (1916). Maj. Op. 15. But Shanks held that a railroad
employee was not engaged in interstate commerce, and thus
not subject to FELA, when he was injured while repairing a
“heavy shop fixture” used to power equipment that serviced
interstate trains.
Shanks, 239 U.S. at 558. Shanks relied on
Illinois Central Railroad Co. v. Behrens,
233 U.S. 473
(1914), where the Supreme Court similarly held that “a
member of a crew attached to a switch engine [that] operated
exclusively within the city of New Orleans” was not engaged
in interstate commerce, even though the railroad company
transported interstate freight and the employee at the time of
his death was about to move train cars that were destined for
interstate transport.
Id. at 476–78. All of this line drawing
eventually created so “much confusion” that after decades of
difficulties, Congress to simplify matters just revised FELA
altogether. S. Pac. Co. v. Gileo,
351 U.S. 493, 497 (1956);
Maj. Op. 15 n.2. This is not what we should aspire to for the
FAA.
Of course, neither the majority nor the First Circuit
identified FELA cases from the relevant time period
involving “last leg” delivery workers like those here. The
closest case from this period appears to have been a
Commerce Clause case, New York ex rel. Pennsylvania
Railroad Co. v. Knight, 192 U.S. 21 (1904), which cuts
against the majority’s position. There, an interstate railroad
58 RITTMANN V. AMAZON.COM
company operated a horse-drawn cab business within New
York City that transported its passengers to and from their
homes or hotels to a ferry landing.
Id. at 25. The railroad
argued it was not subject to a state tax because the cab
service was a part of its overall interstate transportation.
Id.
The Supreme Court disagreed and held that the local cab
service was not “engaged in interstate transportation”
because it was “exclusively rendered within the limits of the
city.”
Id. at 26, 28. In reaching this conclusion, the Supreme
Court rejected the company’s alternative view and asked, “If
the cab service is interstate transportation, are the drivers of
the cabs . . . also engaged in interstate commerce? And
where will the limit be placed?”
Id. at 28. The majority tries
to distinguish Knight as relevant only for “taxation
purposes,” Maj. Op. 22, but why wouldn’t FELA cases then
be relevant only for FELA? The key point is that early cases
involving the Supreme Court’s struggles to capture the
meaning of interstate commerce in FELA and otherwise thus
at best point in different directions and make them uncertain
guideposts for the scope of FAA § 1.
The cases the majority cites from the antitrust context,
Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974),
and United States v. American Building Maintenance
Industries,
422 U.S. 271 (1975), also do not move the
needle. Maj. Op. 17–18 & n.3. The statutes at issue there
did not focus on workers or their work, but on defendants
that are typically companies, whose engagement with
interstate commerce is therefore qualitatively different. See
15 U.S.C. §§ 13(a), 14, 18. When these antitrust cases
discussed the “flow of interstate commerce,” it was thus in
the context of “a corporation” that “must itself be directly
engaged in the production, distribution, or acquisition of
goods or services in interstate commerce.” Am.
Bldg.,
422 U.S. at 283 (citing Gulf
Oil, 419 U.S. at 195). This is a
RITTMANN V. AMAZON.COM 59
seemingly broader definition of “engaged in” than even the
majority is willing to tolerate for § 1. See Maj. Op. 18 n.3.
And it has no apparent alignment with the statute before us,
making its relevance to this case entirely unclear.
Even so, Gulf Oil held that “entirely intrastate sales of
asphaltic concrete” did not reflect corporate activity
“engaged in” interstate commerce, even though the concrete
was used “in the construction of interstate highways” and
sold to “interstate highway contractors.” 419 U.S. at 188,
196, 199. American Building similarly held that the
janitorial service company at issue there was not “engaged
in” interstate
commerce. 422 U.S. at 283–84. In fact, and in
language reminiscent of this case, American Building noted
that “simply supplying localized services to a corporation
engaged in interstate commerce” did not satisfy the
applicable “in commerce” requirement of the Clayton Act.
Id. at 283.
I thus find it difficult to infer from antitrust cases curbing
the “in commerce” requirement a congressional intent to
expand the FAA’s narrow exemption for certain
transportation workers. Indeed, Circuit City relied on Gulf
Oil and American Building in explaining why the phrase
“engaged in foreign or interstate commerce” should be
construed narrowly. See Circuit
City, 532 U.S. at 117–18.
It did not look to these cases to interpret § 1 in the way the
majority does.
C
Also overstated is the majority’s attempt to rely on cases
from other circuits and district courts. Maj. Op. 12–14. The
majority states that its “reading of the statutory text is
reinforced by decisions of other circuits and our own that
have applied the exemption.” Maj. Op. 12. But aside from
60 RITTMANN V. AMAZON.COM
the recent decisions in Waithaka and Wallace, no court of
appeals has yet addressed issues comparable to the ones we
decide today. 3 The only Ninth Circuit case of any relevance
is Harden v. Roadway Package Systems, 249 F.3d 1137 (9th
Cir. 2001), which held that the plaintiff, a delivery driver,
was “engaged in” interstate commerce and exempt from the
FAA because he “contracted to deliver packages throughout
the United States, with connecting international service.”
Id.
at 1140 (quotations omitted). We did not focus on whether
the goods had previously traveled in interstate commerce or
whether the company generally was engaged in interstate
commerce, as the court does today. Maj. Op. 21, 26. And
AmFlex workers have not entered contracts containing
similar language.
The majority speculates that it is “more plausible” that
the driver in Harden “made last-mile deliveries wholly
within a given state,” Maj. Op. 27 n.8. But nothing on the
face of Harden supports this. And unsurprisingly, given its
discussion of deliveries made “throughout the United States,
with connecting international service,” Harden has long
been understood as a case about interstate delivery workers.
See e.g., Fuentes v. Rush Truck Ctrs. of Cal., Inc., 2019 WL
3240100, at *4 (C.D. Cal. March 11, 2019) (citing Harden
for the proposition that “[i]nterstate truck drivers, directly
responsible for transporting goods across state lines, fall
squarely in the category of transportation workers”); Veliz v.
Cintas Corp.,
2004 WL 2452851, at *5 (N.D. Cal. April 5,
3
While Wallace acknowledged that Waithaka was a “harder” case,
Wallace, 2020 WL 4463062, at *2, the reasoning of Wallace is plainly
inconsistent with both the majority opinion here and Waithaka. Wallace
made clear that § 1 does not turn on whether the goods previously
traveled in interstate commerce. See
id. at *3 (rejecting the theory that
“the residual exemption is not so much about what the worker does as
about where the goods have been”).
RITTMANN V. AMAZON.COM 61
2004) (citing Harden for the proposition that “[t]he most
obvious case where a plaintiff falls under the FAA
exemption is where the plaintiff directly transports goods [ ]
interstate, such as [an] interstate truck driver whose primary
function is to deliver mailing packages from one state into
another”).
The cases from other circuits that the majority relies on
do not support its holding because they addressed other
issues. Lenz v. Yellow Transportation, Inc., 431 F.3d 348,
351 (8th Cir. 2005), Hill v. Rent-A-Center, Inc.,
398 F.3d
1286, 1290 (11th Cir. 2005), and Cole v. Burns International
Security Services,
105 F.3d 1465, 1470–71 (D.C. Cir. 1997),
all concerned the threshold questions whether an employee
was a transportation worker or whether § 1 was limited to
transportation workers (which the Supreme Court later
answered “yes” in Circuit City).
The majority’s reliance on Palcko v. Airborne Express,
Inc., 372 F.3d 588 (3d Cir. 2004), is similarly overstated.
There, the Third Circuit held that a “direct supervisor” of
“drivers that transported packages” for a company
“engage[d] in intrastate, interstate, and international
shipping” was covered by the § 1 exemption.
Id. at 590, 594
n.2. In the Third Circuit’s view, such a person was “so
closely related [to interstate commerce] as to be in practical
effect part of it.”
Id. at 593 (quotations and brackets
omitted).
In Palcko, the Third Circuit apparently suggested that § 1
applies to workers who “engage in interstate commerce” or
“in work so closely related thereto.”
Id. (quotations
omitted); see also Singh v. Uber Techs. Inc.,
939 F.3d 210,
214 (3d Cir. 2019) (“[T]he residual clause of § 1 may extend
to a class of transportation workers who transport
passengers, so long as they are engaged in interstate
62 RITTMANN V. AMAZON.COM
commerce or in work so closely related thereto as to be in
practical effect part of it.”); Maj. Op. 13 n.1. That is just an
expansion of the actual language in § 1, and it lacks
justification for that reason. Indeed, this approach is most
akin to my Option 1.
But even so, properly considered, Palcko stands only for
the proposition that to fall within the § 1 residual clause,
crossing state or international lines may not be required for
certain classes of workers that supervise interstate
transportation. See Palcko, 372 F.3d at 594 n.2. That is a
very different question than whether local delivery drivers
are exempt from the FAA, based on whether and how their
work renders them a “class of workers engaged in” interstate
commerce. That is a question on which Palcko sheds no
light.
Indeed, in a later case, the Third Circuit remanded for
further discovery on the question of whether Uber drivers
“engaged in” interstate commerce under § 1, because the
plaintiff had “place[d] the issue in dispute” by “aver[ring]
that he frequently transported passengers on the highway
across state lines, between New York and New Jersey.”
Singh, 939 F.3d at 226 (emphasis added). The Third Circuit
thus appears to have recognized that when it comes to
workers who make deliveries (of people or goods), and
unlike the supervisor in Palcko, the analysis under § 1 turns
on the extent to which the class of workers crosses state lines
in the course of their deliveries. That is the approach I would
have followed here as to AmFlex workers, who are more
analogous to Uber drivers than to the supervisor in Palcko.
The Seventh Circuit followed a similar approach in
International Brotherhood of Teamsters Local Union No. 50
v. Kienstra Precast, LLC, 702 F.3d 954 (7th Cir. 2012). That
case involved truck drivers at an Illinois concrete company
RITTMANN V. AMAZON.COM 63
who argued they were exempt from the FAA under § 1. Id.
at 956. The Seventh Circuit treated the case as turning on
whether the “trucking employees’ activities were strictly
limited to three counties in southern Illinois” or, instead,
“whether the truckers ever carried loads into Missouri or
other States.”
Id. Because discovery demonstrated that
these workers “cross[ed] state lines” in a sufficient amount,
they fell within § 1.
Id. at 957.
Finally, like its circuit court authority, the majority’s
reliance on district court decisions is also overstated. While
the majority claims that district courts “have also understood
§ 1 not to require that a worker cross state lines,” Maj.
Op. 13, many other district courts have held the opposite in
cases involving delivery workers who transported goods,
restaurant food, and passengers. See Rogers v. Lyft, Inc., —
F. Supp. 3d —, 2020 WL 1684151, at *6 (N.D. Cal. April 7,
2020); Grice v. Uber Techs., Inc.,
2020 WL 497487, at *6
(C.D. Cal. Jan. 7, 2020); Magana v. DoorDash, Inc., 343 F.
Supp. 3d 891, 899 (N.D. Cal. 2018); Bonner v. Mich.
Logistics Inc.,
250 F. Supp. 3d 388, 397 (D. Ariz. 2017);
Vargas v. Delivery Outsourcing, LLC,
2016 WL 946112,
at *4–5 (N.D. Cal. Mar. 14, 2016);
Levin, 146 F. Supp. 3d
at 1152. The majority thus errs in suggesting that the weight
of authority is on its side.
III
Finally, the majority’s approach suffers from serious
problems of practical application, while treating similarly
situated workers unequally. These are two significant sets
of downsides for an interpretation of the FAA that is already
not the best reading of the statutory text.
As to workability: Whereas Amazon’s approach requires
a relatively straightforward inquiry into the extent to which
64 RITTMANN V. AMAZON.COM
AmFlex workers crossed state lines in the course of their
deliveries, the majority’s approach requires examination into
where shipped goods originated, whether an underlying
transaction is “continuous,” and where items “come to rest.”
Demonstrating the extent to which shipped goods
originated out of state strikes me as a potentially difficult
inquiry. Although one would assume AmFlex workers are
delivering at least some goods that came to an Amazon
warehouse from outside the States in which they are located,
I am not aware of evidence on this issue, and the majority
assumes the point. Maj. Op. 21. The assumption seems
plausible enough in the context of Amazon, but the rule the
majority sets forth will need to be applied to delivery
workers for businesses other than Amazon, and those
businesses may be less integrated and less national in scope.
Furniture stores or florists come to mind. Having extensive
discovery on where goods originated just to determine
arbitrability is contrary to the purpose of the FAA. See
Allied-Bruce, 513 U.S. at 275. Amazon’s approach may
require some discovery too, but that discovery will likely be
more contained and is at least based on the FAA’s focus on
the “class of workers.”
The need to determine, under the majority opinion,
whether the interstate transaction was “continuous,” or
whether the items “came to rest” earlier, strikes me as even
more problematic. The “come to rest” doctrine has been
sourced to A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935). See Maj. Op. 23. In Schechter Poultry,
the Supreme Court held that the transactions at issue were
not “in interstate commerce” because the goods had “come
to a permanent rest” within New York and were “not
destined for transportation to other
States.” 295 U.S. at 543.
RITTMANN V. AMAZON.COM 65
In this respect, Schechter Poultry would seem to support
Amazon.
But the more fundamental point is that importing a
“come to rest” doctrine into the FAA is ill-advised.
Schechter Poultry was an exemplar of an earlier era in which
the Supreme Court made attempts to place limits on
Congress’ power under the Commerce Clause through
doctrinal devices that sought to capture where interstate
commerce supposedly began and ended as part of assessing
whether effects on interstate commerce were direct or
indirect. See id. While perhaps well-intentioned, this
approach proved difficult to apply and was effectively
abandoned. See, e.g., NLRB v. Jones & Laughlin Steel
Corp.,
301 U.S. 1, 36–38 (1937); see also United States v.
Lopez,
514 U.S. 549, 555 (1995).
Resurrecting this approach now in the context of the
FAA’s transportation worker exemption is not justified. The
difficulty lies in the fact that determining whether an
interstate transaction is “continuous,” or where an item in
transit “came to rest,” is more a matter of metaphysics than
legal reasoning. If a tomato was shipped out of state to the
pizzeria, in what sense did it truly “come to rest” there?
What if the tomato spent only 24 hours at the pizzeria before
being made into sauce, but Amazon held an item in
inventory for six months at an Amazon warehouse before an
order from a nearby customer was placed and an AmFlex
worker picked it up and delivered it? Is one chain of events
more “continuous” than the other? And if a good is shipped
from a manufacturer to a storefront retailer, why does its
“rest” begin at the retailer, while an Amazon-purchased
good only “rests” once it gets to the consumer?
The record suggests that AmFlex workers sometimes
pick up items from grocery stores or other local merchants
66 RITTMANN V. AMAZON.COM
and deliver them to customers through Amazon Fresh or
Prime Now, related Amazon services. Is a grocery store
more akin to a restaurant where food items apparently “come
to rest,” or a warehouse where they do not? Does it matter
if a customer orders a pre-packaged pound of Swiss cheese
or a pound of Swiss cheese sliced at the deli counter, where
the cheese is mixed with labor and transformed to some
degree? 4
The point is that these are all difficult inquiries that have
no right answer, at least according to the tools available to
lawyers and judges. Undertaking such confounding
inquiries in the context of the FAA is particularly
undesirable when the result will inevitably mean more
complex civil litigation over the availability of a private
dispute resolution mechanism that is supposed to itself
reduce costs. See Circuit City, 532 U.S. at 123; Allied-
Bruce, 513 U.S. at 275.
As to fairness: In a § 1 exemption that is focused on
“class[es] of workers,” the majority’s approach produces the
inequitable result that workers performing the same work are
subject to different legal regimes. AmFlex delivery persons
and food service delivery workers from companies like
Doordash both make local deliveries. But under the majority
opinion, the former delivery workers are exempt from the
FAA, whereas the latter are fnot. See Maj. Op. 23–25. It is
hard to understand why that should be the case when from
the perspective of the local delivery person, whether he is
4
Even the plaintiff recognizes that AmFlex workers perform “pick
ups and deliveries from local merchants” through Amazon’s Prime Now
and Amazon Fresh services. Plaintiff thus suggests this court “could
limit its ruling to exclude the Amazon Fresh and Prime Now services.”
The majority opinion instead holds, without limitation, that “AmFlex
delivery providers fall within the [§ 1] exemption.” Maj. Op. 28.
RITTMANN V. AMAZON.COM 67
delivering goods from out of state is irrelevant to his work.
See Wallace, 2020 WL 4463062, at *3.
This inequity comes into sharper relief when considering
that food service delivery workers drop off items for
restaurants that one could also order on Amazon. These
items (like my earlier example of cans of Cherry Coke) are
not in any way transformed into something else at the
restaurant. But unlike his Doordash counterpart, the AmFlex
driver who drops off the Cherry Coke after retrieving it from
an Amazon warehouse is not subject to arbitration under the
majority opinion. Local delivery drivers dropping off the
exact same item that originated out of state are thus subjected
to very different legal regimes, for reasons that have nothing
to do with the on-the-ground work they perform.
Indeed, and perhaps ironically, the record shows that
AmFlex workers themselves deliver restaurant orders. The
contract at the center of this dispute instructs AmFlex
workers to “use an insulated bag when delivering restaurant
orders” and to “not leave chilled/frozen items unattended.”
In the district court, an AmFlex director submitted a
declaration stating that AmFlex workers “can deliver
restaurant orders.” Decl. of Piyush Lumba ¶ 9, Rittmann v.
Amazon.com, Inc., No. 2:16-cv-01554-JCC (W.D. Wash.),
ECF No. 49. And declarations from AmFlex delivery
providers confirm they do so. See, e.g., Decl. of Michelle
Prevette ¶ 9, Rittmann v. Amazon.com, Inc., No. 2:16-cv-
01554-JCC (W.D. Wash.), ECF No. 54 (explaining she used
“insulated bags for [her] work with Amazon” when making
“hot and cold food deliveries”); Decl. of Thyais R.J. Meade
¶ 14, Rittmann v. Amazon.com, Inc., No. 2:16-cv-01554-JCC
(W.D. Wash.), ECF No. 57 (“I have had a time during a
restaurant delivery where Amazon dispatch contacted me (at
first, with a canned message) to let me know that the
68 RITTMANN V. AMAZON.COM
restaurant delivery was not ready yet.”). This means that
AmFlex workers are treated differently than Doordash
drivers even though both deliver meals from local
restaurants.
The inequities become even stranger when one considers
that delivery workers often work for multiple services, even
at the same time (think of drivers with both Uber and Lyft
stickers on their windshields). An AmFlex worker who also
works for Doordash and is doing the same basic work for
both companies would thus be subject to arbitration based
on which company’s “hat” he is wearing.
Indeed, Lawson, the named plaintiff at issue here,
himself drove for Uber and Lyft and worked for food
delivery companies Postmates, Caviar, and Grubhub. See
Lawson v. Grubhub, Inc., 302 F. Supp. 3d 1071, 1073 (N.D.
Cal. 2018). He worked for several of these companies at the
same time.
Id. at 1074. Lawson was able to file a lawsuit in
federal court against Grubhub because he opted out of his
arbitration agreement with that company. See
id. at 1072.
But under the majority’s opinion, had he not opted out, as a
food delivery person Lawson apparently would not have
been covered by the § 1 transportation worker exemption
and could have been required to arbitrate his claim with
Grubhub. Under the majority opinion, therefore, the same
person performing the same type of work at the same time
through the same means is required to arbitrate against some
employers but not others. Suffice to say, it is hard to locate
such a regime in the language Congress used in § 1.
* * *
I would have held that the district court erred in denying
Amazon’s motion to compel arbitration. I therefore
respectfully dissent.
