Robert Harper v. Amazon.com Services Inc ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2614
______________
ROBERT HARPER
v.
AMAZON.COM SERVICES, INC.;
JOHN DOES 1-5 AND 6-10
AMAZON.COM SERVICES, INC.,
Appellant
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:19-cv-21735)
District Judge: Honorable Freda L. Wolfson
______________
Argued March 16, 2021
Before: SHWARTZ, PORTER, MATEY, Circuit Judges.
(Filed: September 8, 2021)
Gabrielle Levin
Gibson, Dunn & Crutcher LLP
200 Park Avenue
47th Floor
New York, NY 10166
Jason C. Schwartz (Argued)
Lucas C. Townsend
Joshua M. Wesneski
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Counsel for Appellant
Steven P. Lehotsky
Jonathan D. Urick
U.S. Chamber Litigation Center
1615 H Street, N.W.
Washington, DC 20062
Archis A. Parasharami
Daniel E. Jones
Mayer Brown LLP
1999 K Street, N.W.
Washington, DC 20006-1101
Counsel for Amicus Curiae in Support of Appellant,
The Chamber of Commerce of the United States of
America
2
Deborah L. Mains (Argued)
Costello & Mains, LLC
18000 Horizon Way
Suite 800
Mount Laurel, NJ 08054
Counsel for Appellee
______________
OPINION OF THE COURT
______________
MATEY, Circuit Judge.
Robert Harper spends part of his time making deliveries
for Amazon as a “flexible” driver, one of those once unknown,
now ubiquitous, jobs of the twenty-first century.1 Harper
alleges Amazon owes him wages and tips. Perhaps they do. But
before answering that question, the District Court must first ask
another: whether Harper’s claims belong in arbitration. This
inquiry, as we hold today, respects the balance of authority
between the several States and the United States and requires
federal courts sitting in diversity to decide state law claims,
including state arbitrability, even where the Federal Arbitration
1
Amazon uses the “Amazon Flex” program to
supplement its traditional delivery services by contracting with
drivers for local deliveries in certain U.S. metro areas.
https://flex.amazon.com/faq. Through a smartphone app,
individuals sign up to make “last mile” deliveries of products
from Amazon warehouses. (Opening Br. at 6.) Flex drivers
also deliver groceries through Prime Now and Amazon Fresh
and takeout from local restaurants through Instant Offers.
https://flex.amazon.com/faq.
3
Act (“FAA”) may apply. Doing so promotes both the
competitive and cooperative aspects of Our Federalism, with
appropriate “sensitivity to the legitimate interests of both State
and National Governments.” Younger v. Harris, 401 U.S. 37,
44 (1971). That is a threshold inquiry, ensuring prompt review
of state law claims, particularly before turning to discovery to
sort through a comparatively complex federal question. For
that reason, we will vacate the District Court’s judgment and
remand to determine the arbitrability of Harper’s claim against
Amazon under applicable state law.
I. BACKGROUND
Robert Harper runs deliveries for Amazon under the
“Amazon Flex” program. (App. at 44.) Amazon Flex
supplements Amazon’s traditional delivery services. Interested
drivers use an app to sign up to drive packages from Amazon
warehouses, affiliated grocers, and participating restaurants to
home shoppers.
Harper signed up as a driver through the Amazon Flex
phone app, where he clicked on a brightly colored button
stating, “I AGREE AND ACCEPT” (in all caps) following the
Terms of Service. (Opening Br. at 7.) The Terms noted, with
still more capitalization, that the Amazon Flex driver who
accepts:
AGREE[S] TO RESOLVE DISPUTES
BETWEEN YOU AND AMAZON ON AN
INDIVIDUAL BASIS THROUGH FINAL
AND BINDING ARBITRATION, UNLESS
YOU OPT OUT OF ARBITRATION WITHIN
4
14 CALENDAR DAYS OF THE EFFECTIVE
DATE OF THIS AGREEMENT.2
(App. at 62.) The Terms of Service also included
language specifying that the parties “agree[d] that the Federal
Arbitration Act and applicable federal law will govern any
dispute that may arise between the parties.” (App. at 67.) And
a choice-of-law provision provided that Washington law
controls the rest of the Terms of Service. Harper admits that he
agreed, clicking first to accept the full Terms and clicking
again to confirm the arbitration clause. Still, he filed a
complaint in the Superior Court of New Jersey, alleging
violations of New Jersey law. Amazon removed to federal
court, claiming complete diversity. Pressing on, Harper filed a
putative class action on behalf of similarly situated New Jersey
Amazon Flex drivers, alleging that Amazon misclassified them
as independent contractors when they really are employees,
2
Section 11(a) of the Terms of Services, labeled
“Dispute Resolution, Submission to Arbitration,” explains that
“subject to your right to opt out of arbitration, the parties will
resolve by final and binding arbitration, rather than in court,
any dispute or claim, whether based on contract, common law,
or statute, arising out of or relating in any way to this
agreement, including termination of this agreement, . . . to your
participation in the program or to your performance of
services.” (App. at 66.) Section 11(b) adds that “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.” (App. at 66.) For added
punch, both sections also appear in ALL CAPS, an extravagant
stylistic choice we omit for the reader’s ease.
5
and that Amazon failed to pay overtime, minimum wage, and
customer tips, in violation of New Jersey labor laws.
Amazon moved to enforce the arbitration clause in the
Terms and compel arbitration under the FAA. Harper objected,
arguing that New Jersey Amazon Flex drivers fall within the
exemption for a “class of workers engaged in foreign or
interstate commerce” provided in 9 U.S.C. § 1 because they
make some deliveries across state lines. Amazon disagreed
with that construction of federal law. But no matter, the
company added, because the claim is also arbitrable under state
law. Interpreting our prior decisions, the District Court denied
Amazon’s motion to compel arbitration. Construing the issue
as one of fact, the District Court ordered discovery to
determine whether Harper falls within the § 1 exception to the
FAA by, among other acts, making deliveries from New Jersey
to New York. The District Court declined to reach Amazon’s
alternative argument about state law, and Amazon timely
appealed.3
3
The District Court exercised jurisdiction under 28
U.S.C. §§ 1332(a) and 1332(d)(2). We have jurisdiction over
this appeal of an order denying the motion to compel
arbitration under 9 U.S.C. § 16(a)(1)(B). We have pendent
jurisdiction over whether arbitration may be compelled under
state law when “state law issues arise from a single arbitration
agreement that provides alternative grounds for the arbitration
of all claims.” Palcko v. Airborne Express, Inc., 372 F.3d 588,
594 (3d Cir. 2004). Review of these state law issues “is
necessary to ensure meaningful review of the District Court’s
order in its entirety.” Id. at 595. We review the District Court’s
order compelling arbitration de novo. Singh v. Uber Techs.
6
II. DISCUSSION
Congress limited the scope of the FAA by exempting
the employment contracts of certain classes of workers
engaged in foreign or interstate commerce. Whether that
exemption applies is a question of law that, ordinarily, does not
require fact-finding through discovery. Nor does the FAA
require courts to ignore state law grounds for enforcing an
agreement to arbitrate. Both issues require more consideration
by the District Court on remand.
A. Section 1 of the FAA
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.” 9 U.S.C. § 1. It is
a “very particular qualification” attributed to pre-existing
“alternative employment dispute resolution regimes for many
transportation workers.” New Prime, Inc. v. Oliveira, 139 S.
Ct. 532, 537 (2019). Adding to § 1’s language, we have applied
the exception to cover employees in any transportation
industry who “engage[] in the movement of interstate or
foreign commerce or in work so closely related thereto as to be
in practical effect part of it.” Tenney Eng’g, Inc. v. United Elec.
Radio & Mach. Workers of Am., (U.E.) Local 437, 207 F.2d
450, 452 (3d Cir. 1953) (en banc). Since then, the Supreme
Court has cautioned courts to “construe the ‘engaged in
commerce’ language in the FAA with reference to the statutory
Inc., 939 F.3d 210, 217 (3d Cir. 2019). In doing so, “[w]e apply
the same standard as the District Court, so we are first obliged
to determine which standard should have been applied [in
reviewing the arbitration award].” Id. (internal quotation
omitted).
7
context in which it is found and in a manner consistent with the
FAA’s purpose.” Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 118 (2001). Applying this framework, the Court has held
“that the § 1 exclusion provision [should] be afforded a narrow
construction.” Id.; see also Wallace v. Grubhub Holdings, Inc.,
970 F.3d 798, 800–02 (7th Cir. 2020).
Equally important, the “inquiry regarding § 1’s residual
clause asks a court to look to classes of workers rather than
particular workers.” Singh v. Uber Techs., Inc., 939 F.3d 210,
227 (3d Cir. 2019); see also Wallace, 970 F.3d at 800 (Section
1 asks “not whether the individual worker actually engaged in
interstate commerce, but whether the class of workers to which
the complaining worker belonged engaged in interstate
commerce.” (quotation marks and emphasis omitted)). That
limitation flows from the ordinary meaning of § 1, which
includes the “other class of workers engaged in . . . commerce”
as a “residual phrase, following, in the same sentence, explicit
reference to ‘seamen’ and ‘railroad employees.’” Circuit City,
532 U.S. at 114.
Determining whether § 1’s exclusion applies is a
threshold inquiry because “a court must first know whether the
contract itself falls within or beyond the boundaries of §§ 1 and
2.” New Prime, 139 S. Ct. at 537. Doing so requires construing
the ordinary meaning of § 1, as interpreted by our decisions,4 a
4
A line of cases dating to the 1953 en banc decision in
Tenney holds that § 1 exempts all transportation-industry
employees who engage in “work so closely related [to
interstate or foreign commerce] as to be in practical effect part
of it” from the FAA’s reach. 207 F.2d at 452. Later, our Court
reaffirmed Tenney’s construction of § 1 while concluding that
8
question of law that typically can be resolved without facts
outside the well-pleaded complaint. Singh, 939 F.3d at 219
(discussing Guidotti v. Legal Helpers Debt Resolution, L.L.C.,
716 F.3d 764 (3d Cir. 2013)). That inquiry turns on multiple
factors informing the sort of “work so closely related” to
interstate or foreign transportation, such as the parties’
agreement, and the “industry in which the class of workers is
engaged.” Id. at 227–28. And “when it is apparent, based on
the face of a complaint, and documents relied upon in the
complaint, that certain of a party’s claims are subject to an
enforceable arbitration clause, a motion to compel arbitration
should be considered under a Rule 12(b)(6) standard without
discovery’s delay.” Guidotti, 716 F.3d at 776 (internal
quotation marks omitted). But in some cases, where the scope
of the class of workers at issue cannot be determined by
examining the nature of the work performed by the class, and
by comparison to the rail and sea industries specified by
Congress, “limited discovery” “restricted” to facts about the
class of workers may be ordered. Singh, 939 F.3d at 218–19.
Here, the District Court held Harper met the Singh standard for
discovery. Following that path is understandable, and
a Philadelphia-area supervisor for an international shipping
company was a “transportation worker engaged in interstate
and foreign commerce” exempt from the FAA. Palcko, 372
F.3d at 593–94. Most recently, Singh described Tenney as
“unequivocal that the residual clause of § 1 excludes the
contracts of employment of transportation workers who
transport passengers from the FAA.” Singh, 939 F.3d at 222.
All drawing a straight line from Tenney to Harper’s argument
that Amazon Flex drivers making local, last-few-mile-only
deliveries are “workers engaged in foreign or interstate
commerce.”
9
discovery may indeed show whether Harper belongs to a class
of workers engaged in foreign or interstate commerce in the
same way as seamen and railroad workers. But when state law
grounds exist that would enforce arbitration even if the FAA
does not apply, courts must turn to that threshold question
under Guidotti before ordering discovery. Doing so honors the
principles of federalism and the expectations of the parties. We
turn next to those concepts.
B. The Co-Equal Role of Arbitration Under State Law
Assume, Amazon argues, that the § 1 exemption
applies. If so, the parties might still have an enforceable
agreement to arbitrate under state law. And if that is so, then
why not answer that question of law before turning to
discovery, mindful that fact-finding can always come later if
necessary? We agree and hold this question must be resolved
before turning to discovery.
1. The Scope of FAA Preemption
Begin with the scope of FAA preemption in § 2 of the
5
Act. Not all state laws, only laws that conflict with the FAA,
are “displaced.” AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 341 (2011). A state law enforcing arbitration, like New
Jersey’s Arbitration Act (“NJAA”), creates no conflict. See
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–
46 (2006); Volt Info. Sci., Inc. v. Bd. of Trs. of Leland Stanford
9 U.S.C. § 2 states that agreements to arbitrate “in any
5
maritime transaction or a contract evidencing a transaction
involving commerce . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.”
10
Junior Univ., 489 U.S. 468, 474 (1989). That is because “pre-
emption analysis is not a freewheeling judicial inquiry into
whether a state statute is in tension with federal objectives, but
an inquiry into whether the ordinary meanings of state and
federal law conflict.” Bates v. Dow Agrosciences LLC, 544
U.S. 431, 459 (2005) (Thomas, J., concurring in the judgment
in part and dissenting in part) (internal quotation marks and
citation omitted). In short, “[t]he FAA contains no express pre-
emptive provision, nor does it reflect a congressional intent to
occupy the entire field of arbitration.” Volt, 489 U.S. at 477.
As with nearly all aspects of our republic, state and federal law
here complement, rather than conflict.
That balance is seen here. If the § 1 exclusion applies,
then the FAA does not. But the parties still have an agreement
to arbitrate, and if federal law does not govern the arbitrability
of their contract, some law must.
2. Choosing the Applicable Law
So what law applies? The agreement between Harper
and Amazon answers that question or, at least, it tells us how
the question will be answered. Recall how the agreement came
to be. Working under the Amazon Flex program starts with a
downloaded app and a few clicks. To join, willing drivers must
accept the Terms of Service, agreeing to “resolve disputes”
with Amazon “through final and binding arbitration.” (App. at
62.) The Terms of Service state that “the Federal Arbitration
Act and applicable federal law will govern any dispute that
may arise between the parties.” (App. at 67.) Everything else
is governed by Washington law. (See App. at 67.) The Terms
of Service are severable, and “[i]f any provision of th[e]
Agreement is determined to be unenforceable,” the rest of the
agreement must “be enforced as if the unenforceable
11
provisions were not present [such] that any partially valid and
enforceable provisions [are] enforced to the fullest extent
permissible under applicable law.” (App. at 68.)
In this language, Harper sees a hole that defeats the
parties’ bargain. He argues that because the agreement selects
the FAA to govern arbitration, there is no law to apply if the §
1 exemption takes the FAA out. Two problems arise from that
contention. First, state law grounds for arbitration may exist.
Generally, a court can only determine whether state law
provides grounds for arbitration by deciding what state law
applies using the rules of the forum state. Gen. Ceramics Inc.
v. Firemen’s Fund Ins. Companies, 66 F.3d 647, 652 (3d Cir.
1995) (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487(1941)). That is because our federal system “leaves to a state,
within the limits permitted by the Constitution, the right to
pursue local policies diverging from those of its neighbors.”
Klaxon, 313 U.S. at 496. When engaging in substantive
contractual interpretation, a federal court must look to the
choice-of-law rules of the forum state, even where the contract
includes a choice-of-law clause. Collins v. Mary Kay, Inc., 874
F.3d 176, 183 (3d Cir. 2017). That duty remains when the FAA
is part of the contract because “[t]here is no language in the
FAA that explicitly preempts the enforcement of state
arbitration statutes.” Palcko, 372 F.3d at 595. Finding the § 1
exemption applies does not mean all state law about arbitration
vanishes. “[E]ven if an arbitration agreement is outside the
FAA, the agreement still may be enforced.” Cole v. Burns Int’l
Sec. Servs., 105 F.3d 1465, 1472 (D.C. Cir. 1997).
Second, and specifically, the Terms of Service need not
be read to hinge arbitrability on the application of federal law.
Equally plausible is a reading that creates an obligation to
12
arbitrate all disputes and a separate, possibly severable, choice
of federal law.6 One term need not depend on the other.
Of course, that does not mean Washington law controls,
or that Harper and Amazon have an agreement to arbitrate
under state law at all. These are questions best considered by
the District Court. See Singleton v. Wulff, 428 U.S. 106, 120
(1976) (“It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below.”). A
remand to fully consider arbitration under state law grounds is
appropriate and, it turns out, agreeable to the parties.7 More
importantly, it is what federalism requires of a federal court
sitting in diversity jurisdiction on a state law claim.
6
Looking at this same contract, two circuits so far have
reached opposite conclusions on the severability question.
Compare Waithaka v. Amazon.com, Inc., 966 F.3d 10, 27 (1st
Cir. 2020) (“Amazon’s shortcomings in drafting the
Agreement do not alter our ultimate conclusion . . . . Because
the FAA is inapplicable, the portions of the governing law and
dispute resolution sections selecting the FAA must be stricken
from the Agreement, leaving Washington law as the default
choice of law . . . .”), with Rittman v. Amazon.com, Inc., 971
F.3d 904, 920 (9th Cir. 2020) (“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.”).
7
As acknowledged by the parties at argument.
(Transcript of Oral Argument at 23–28, Harper v. Amazon.com
Services Inc., No. 20-2614 (3d Cir. March 16, 2021), ECF No.
42.)
13
3. State Law Questions of Arbitrability Should Be
Resolved First
Finally, state law arbitration questions must be resolved
before turning to questions of fact and discovery.8 Fairly, the
District Court opted to resolve the applicability of the FAA
before diving into a choice-of-law analysis. That sequencing
8
Our dissenting colleague argues that “binding
precedent supports the sequence that the District Court
followed.” (Dissent at 3.) We agree that it was proper to assess
the FAA’s applicability in the first instance. But no binding
precedent requires district courts to ignore arbitrability under
state law when the applicability of § 1 is uncertain. That
sequencing question was asked, but not answered by the First
Circuit in New Prime. Oliveira v. New Prime, Inc., 857 F.3d 7,
24 (1st Cir. 2017), aff’d, 139 S. Ct. 532 (2019). And the
Supreme Court in New Prime did not discuss, let alone decide,
the matter. Rather, the Court outlined the order of analysis for
FAA provisions and doctrines, but said nothing about when
state law arbitrability must be addressed. 139 S. Ct. at 537–38
(holding that §§ 1 & 2 come before §§ 3 & 4 and the FAA’s
“severability” doctrine). Indeed, no court has suggested that
New Prime requires that we determine “whether [§ 1] applies
before turning to state law.” (Dissent at 4.) Nor have we
previously addressed how district courts should consider state
law arbitrability when faced with a cloud of § 1 uncertainty.
The issue did not arise in Palcko, where we affirmed the district
court’s conclusion that the contract was exempt under § 1
before turning to state law. 372 F.3d at 594–96. And
sequencing was not before us in Singh either, see 939 F.3d at
228, although the concurrence flagged the issue. Id. at 231
(Porter, J., concurring in part and concurring in the judgment).
14
replaces a possibly challenging set of legal questions with an
almost certainly burdensome set of factual disputes and opens
the door to the delays, costs, and uncertainty an enforceable
arbitration clause seeks to avoid. Guidotti, incorporated into
the analysis of the § 1 claims in Singh, counsels a different
course.
Recall that Singh adopts the test outlined in Guidotti,
requiring courts to resolve a motion to compel arbitration
“under a Rule 12(b)(6) standard without discovery’s delay”
when only facts alleged in the complaint are sufficient for a
decision as a matter of law. Guidotti, 716 F.3d at 776 (internal
quotation marks omitted). In challenges to arbitrability under §
1, that creates a three-part framework. At step one, using the
traditional tools of statutory interpretation to analyze the facts
of the complaint, a court must consider whether the agreement
applies to a class of transportation workers who “engaged
directly in commerce” or “work so closely related thereto as to
be in practical effect part of it.” Tenney, 207 F.2d at 452. If the
class is outside that definition, then § 1 does not apply, and
cannot serve as a defense to a motion to compel arbitration. If
that analysis leads to murky answers, a court moves to step two
and assumes § 1 applies, taking the FAA out of the agreement.
But the court then considers whether the contract still requires
arbitration under any applicable state law. After all, the parties’
primary agreement is to arbitrate their disputes, so courts
should explore both contractual routes to effectuate that
agreement when one is called into question. If the arbitration
clause is also unenforceable under state law, then the court
reaches step three, and must return to federal law and decide
whether § 1 applies, a determination that may benefit from
limited and restricted discovery on whether the class of
workers primarily engage in interstate or foreign commerce.
15
III. CONCLUSION
Reasonably, the District Court focused on the facts
surrounding the class of workers to which Harper belongs. Our
decision today clarifies the steps courts should follow––before
discovery about the scope of § 1––when the parties’ agreement
reveals a clear intent to arbitrate. We reiterate that our decision
does not suggest any particular view of the parties’ agreement,
only the route to follow. Whether Harper and Amazon must
arbitrate their dispute is a matter of both federal and state law,
an analysis best considered by the District Court. For these
reasons, we will vacate the order denying the motion to compel
arbitration and remand for consideration under state law.
16
MATEY, Circuit Judge, concurring.
Nearly a century has passed since Congress codified the
ancient practice1 of arbitration. Since then, federal courts have
engaged in a tug-of-war that expands both the reach of, and the
exceptions to, the Federal Arbitration Act (“FAA”). The result
is uncertainty, with the text drafted by Congress replaced by
presumptions that encourage unpredictability and foster rising
costs. Respectfully, since the courts created this problem, we
should help clean it up. Some have already called for an
examination of the presumption amplifying the modest
command that an agreement to resolve a controversy through
arbitration “shall be valid, irrevocable, and enforceable”2 into
a wide-ranging displacement of private agreements and state
law. See Calderon v. Sixt Rent a Car, LLC, 5 F.4th 1204, 1215–
21 (11th Cir. 2021) (Newsom, J., concurring). An expansion
that may well run directly into the textual guarantee of trial
rights.3 Returning § 2 to its ordinary, best meaning could avoid
that tension and restore the FAA to its stated reach.
1
See 14 Sir William S. Holdsworth, History of English
Law 187 (1964) (“Early Roman and English law retain traces
of the time when the natural way of settling disputes was self-
help, and recourse to a court depended on the consent of the
parties.”) And this “process of jury-avoidance” continued “into
the colonial era.” Renée Lettow Lerner, The Failure of
Originalism in Preserving Constitutional Rights to Civil Jury
Trial, 22 Wm. & Mary Bill Rts. J. 811, 845 & n.227 (2014).
2
9 U.S.C. § 2.
3
“It has been often said by this court that the trial by
jury is a fundamental guaranty of the rights and liberties of the
people. Consequently, every reasonable presumption should be
Similarly, reconsidering our decision in Tenney Eng’g,
Inc. v. United Elec. Radio & Mach. Workers of Am., (U.E.)
Local 437, 207 F.2d 450 (3d Cir. 1953) (en banc) presents an
opportunity to return the exception in 9 U.S.C. § 1 to its textual
parameters. Writing in a different era, and relying on analogy
to the different formulation of the Federal Employers’ Liability
Act (“FELA”), 45 U.S.C. § 51 (1908), Tenney’s construction
of § 1 sweeps in a broader class of workers from a wider range
of industries than the text allows. And with the rise of Internet-
based commerce, Tenney’s command to examine whether the
work at issue is “closely related” to the transportation of
interstate commerce could eventually make the exception to
arbitration the new rule.
indulged against its waiver.” Hodges v. Easton, 106 U.S. (16
Otto) 408, 412 (1882). Contrast this with the presumption,
found nowhere in the text of the FAA, “that questions of
arbitrability must be addressed with a healthy regard for the
federal policy favoring arbitration” because the Act
“establishes that, as a matter of federal law any doubts
concerning the scope of arbitrable issues should be resolved in
favor of arbitration.” Moses H. Cone Memorial Hospital v.
Mercury Construction Corp., 460 U.S. 1, 24–25 (1983).
Instead, the presumption appears drawn from portions of
legislative history. See Southland Corp. v. Keating, 465 U.S. 1,
13–14 (1984). That might explain much of the haze that now
covers the text. Food Mktg. Inst. v. Argus Leader Media, 139
S. Ct. 2356, 2364 (2019) (“Even those of us who sometimes
consult legislative history will never allow it to be used to
‘muddy’ the meaning of ‘clear statutory language.’” (quoting
Milner v. Dep’t of Navy, 562 U.S. 562, 572 (2011))).
2
Reconsidering the judicially created presumptions atop
both §§ 1 and 2 of the FAA would bring everyone back to the
starting line in the text of the law. And applying the text as
written will allow Congress to consider whether new words are
needed about the scope of arbitration in the twenty-first
century.
I. DETERMINING THE BEST READING OF 9 U.S.C. § 1
While the challenges presented by the judicially
magnified presumptions of § 2 deserve a fresh look, that issue
is not before us. The similarly stretched scope of § 1 is. And
since our distant decision in Tenney seems to be at the root of
more recent expansions of the exception, its reconsideration is
warranted.
A. The Ordinary Path of Interpretation
In drafting the FAA, Congress included a specific
exception for “contracts of employment of seamen, railroad
employees, or any other class of workers engaged in foreign or
interstate commerce.” 9 U.S.C. § 1. Normally, we approach the
work of statutory construction with a single mission to
“interpret the words consistent with their ordinary meaning . .
. at the time Congress enacted the statute.” Wis. Cent. Ltd. v.
United States, 138 S. Ct. 2067, 2070 (2018) (alteration in
original) (internal quotation marks omitted); see also United
States v. Smukler, 991 F.3d 472, 482–83 (3d Cir. 2021).
Context aids that mission, as “the meaning of a sentence [is]
more than that of the separate words, as a melody is more than
the notes.” Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731,
1827 (2020) (Alito, J., dissenting). As the Supreme Court has
repeatedly directed, any matter of statutory interpretation
comes with “an important caution in mind” that “if judges
3
could freely invest old statutory terms with new meanings, we
would risk amending legislation outside the ‘single, finely
wrought and exhaustively considered, procedure’ the
Constitution commands.” New Prime Inc. v. Oliveira, 139 S.
Ct. 532, 539 (2019) (quoting INS v. Chadha, 462 U.S. 919, 951
(1983)).
B. Tenney’s Analogy
But sometimes a prior judicial decision colors our
conclusions. See United States v. Games-Perez, 667 F.3d 1136,
1142–43 (10th Cir. 2012) (Gorsuch, J., concurring in the
judgment). That is the case with § 1 and the nearly seven-
decade-old decision in Tenney, involving a suit by a
manufacturer against a labor union for breach of contract. The
contract included an arbitration clause, a right invoked by the
union. Seeking to avoid arbitration, the employer argued the
workers fell under § 1 exemption. 207 F.2d at 452. Tenney
answered that question not through textual construction, but by
analogy, looking to the definition of “commerce” in FELA. Id.
at 453. Tenney concluded Congress “must have had [FELA] in
mind” when drafting the residual clause in § 1 of the FAA,
given that Congress “incorporat[ed] almost exactly the same
phraseology,” that is, “engaged in commerce” and “engaged in
interstate commerce,” respectively. Id. Tenney then applied a
test from a single FELA case to expand the inquiry from
whether the employee was engaged in interstate transportation
to whether the employee was engaged in interstate
transportation or in work so closely related to it as to be
practically a part of it. Id. (citing Shanks v. Del., Lackawanna
& W. R. Co., 239 U.S. 556, 558 (1916)).
As a result, the exception for “seamen, railroad
employees, or any other class of workers engaged in foreign or
4
interstate commerce” now applies to all employees in any
industry who “engage in interstate commerce” or “work so
closely related thereto as to be in practical effect part of it.” Id.
at 452. See also Singh v. Uber Techs., Inc., 939 F.3d 210, 227–
28 (3d Cir. 2019) (creating a multifactor test to answer the
calculation posed by the Tenney formula). And that is the path
courts now understandably follow into discovery to figure out
what is, or is not, closely related to the increasingly borderless
commercial world. With digital platforms providing
consumers access to a global selection of goods and services,
that inquiry seems likely to stump both district courts and
litigants. Indeed, one might ask whether even the most local of
main-street shops that elects to sell its goods, advertise its
services, or collect its payments electronically is instantly
transformed into “foreign or interstate commerce.” What do we
say when the local package store signs up to deliver alcohol
through Drizly to customers ordering online but living blocks
away?4 If hard questions about the scope of the FAA arise from
4
Drizly recruits local stores to provide alcohol to
“millions of customers looking to buy online from their local
liquor store and get delivery to their door.” Become a Drizly
Retail Partner, https://bevalcinsights.com/become-a-drizly-
retail-partner (last visited Sept. 2, 2021). During the COVID-
19 pandemic, Drizly became the “favorite on-demand alcohol
delivery service” known for their speed, large selection, and
also “local picks from each area they’re in — including local
breweries, tasting rooms, and distilleries.” Taylor Galla, Tyler
Schoeber, & Nina Bradley, The Best Alcohol Delivery Services
to Ensure You’ll Never Be Without Your Favorite Booze,
Yahoo, Aug. 6, 2021, https://www.yahoo
.com/lifestyle/best-alcohol-delivery-services-ensure-
200014005.html.
5
enjoying a six-pack, it seems fair to ask whether we are on the
right road.
C. The Text of the FAA
There is, however, a better route drawn only from the
text of the FAA. Remembering that “the words of a statute
must be read in their context and with a view to their place in
the overall statutory scheme,” Parker Drilling Mgmt. Servs. v.
Newton, 139 S. Ct. 1881, 1888 (2019) (quoting Roberts v. Sea-
Land Servs., Inc., 566 U.S. 93, 101 (2012)), I would examine
the ordinary meaning of the § 1 exclusion in the context of the
FAA.
1. Congress Drafted § 1 to Accommodate Existing
Federal Laws
Recall the somewhat unusual phrasing of § 1: “nothing”
in the FAA “shall apply” to “contracts of employment of
seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce.” A precise
definition, the exclusion is written to harmonize the
“alternative employment dispute resolution regimes for many
transportation workers” Congress created before adopting the
FAA in 1925. New Prime, 139 S. Ct. at 537 (discussing Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 121 (2001)). We
know that because “[t]he wording of § 1 calls for the
application of the maxim ejusdem generis, the statutory canon
that where 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.” Circuit City, 532
U.S. at 114–15 (cleaned up). Using this “maxim,” that residual
clause of “any other class of workers engaged in . . .
6
commerce” is “controlled and defined by reference to the
enumerated categories of workers which are recited just before
it.” Id. at 115. Unsurprisingly, the categories of “seamen” and
“railroad employees” have historical meaning informing the
scope of the § 1 exemption and underscoring Congress’s
understanding of its legislative authority to regulate commerce
at the time of the FAA.
Take “seamen,” commonly understood as any “sailor”
or “mariner”5 who “assists in managing ships at sea.”6 It was
also “a maritime term of art” with an “established meaning”
when Congress enacted the Jones Act in 1920,7 providing “a
5
Seaman, Laird & Lee’s Webster’s New Standard
Dictionary of the English Language 316 (1925).
6
Seaman, Webster’s Collegiate Dictionary 870 (3d ed.
1925). See also Seaman, Black’s Law Dictionary (11th ed.
2019) (“(bef. 12c) . . . a person who is attached to a navigating
vessel as an employee below the rank of officer and contributes
to the function of the vessel or the accomplishment of its
mission.”).
7
The “Jones Act” is the Merchant Marine Act of 1920,
Pub. L. 66-261, 41 Stat. 988. The Jones Act did not define
“seaman” because “Congress intended the term to have its
established meaning under the general maritime law at the time
the Jones Act was enacted.” Chandris, Inc. v. Latsis, 515 U.S.
347, 355 (1995). And general maritime law had long
recognized a seaman as “a mariner of any degree, one who
lives his life upon the sea,” including both masters and
crewmen, Warner v. Goltra, 293 U.S. 155, 157 (1934), or more
specifically a “person . . . employed on board a vessel in
7
cause of action in negligence for ‘any seaman’ injured ‘in the
course of his employment.’” McDermott Int’l, Inc. v. Wilander,
498 U.S. 337, 342 (1991);8 Warner v. Goltra, 293 U.S. 155,
157–59 (1934). Likewise, “railroad employees,” a term
encompassing workers “engaged in the customary work
directly contributory to the operation of the railroads.” New
Prime, 139 S. Ct. at 543 & n.11, n.12 (citing Railway
Employees’ Dept., A.F. of L. v. Indiana Harbor Belt R. Co.,
Decision No. 982, 3 R.L.B. 332, 337 (1922) and Erdman Act,
Act of June 1, 1898, ch. 370, 30 Stat. 424). So by the arrival of
the FAA, both “seamen” and “railroad employees” were
already defined by Congress.
And those definitions included procedures for resolving
disputes. Congress addressed arbitration of seamen’s claims in
the Shipping Commissioners Act of 1872, ch. 322, §§ 25–26,
17 Stat. 262, 267, see Circuit City, 532 U.S. at 121, while the
Jones Act of 1920 provided “heightened legal protections
(unavailable to other maritime workers) that seamen receive
because of their exposure to the perils of the sea,” and their
“peculiar relationship to the vessel.” Chandris, Inc. v. Latsis,
515 U.S. 347, 354–55 (1995) (internal quotations omitted).
That excluded “land-based maritime workers” who instead
enjoyed protection under the Longshore and Harbor Workers’
Compensation Act of 1927. Wilander, 498 U.S. at 347–48;
Shade v. Great Lakes Dredge & Dock Co., 154 F.3d 143, 147–
furtherance of its purpose.” McDermott Int’l, Inc. v. Wilander,
498 U.S. 337, 346 (1991).
8
McDermott is quoting 46 App. § 688, recodified at 46
U.S.C. § 30104. See Pub. L. 109-304, § 6(c), 120 Stat. 1485,
1510 (2006).
8
48 (3d Cir. 1998). Simply summarized, Congress exempted
seamen from the Longshore and Harbor Workers’
Compensation Act because they “preferred the remedy for
damages under the [Jones Act].” Warner, 293 U.S. at 159–60.
“Railroad employee” disputes were addressed by
Congress in the Transportation Act of 1920, Pub. L. No. 152,
41 Stat. 456 et seq., and then, “endeavor[ing] to establish a
more practicable plan” to manage railroad labor relations, in
the Railway Labor Act (“RLA”) of 1926. Tex. & New Orleans
R. Co. v. Bhd of Ry. Clerks, 281 U.S. 548, 560–63 (1930). The
RLA defined “employees” to include “every person in the
service of a carrier (subject to its continuing authority to
supervise and direct the manner of rendition of his service) who
performs any work defined as that of an employee or
subordinate official in the orders of the Interstate Commerce
Commission.” Railway Labor Act, § 1, Pub. L. No. 257, 44
Stat. 577 (1926) (codified at 45 U.S.C. § 151).9 Not fifteen
years later, Congress amended the RLA to clarify the bounds
of “employees,” adding that “the term ‘employee’ shall not
include any individual while such individual is engaged in the
physical operations” related to coal mining, preparation, and
handling. Pub. L. No. 764, 54 Stat. 785, 786 (1940). Those
definitions, largely unchanged today, referred only to a person
9
The definition of “employee” incorporates the
definition of “carrier,” which refers to “any express company,
sleeping-car company, and any carrier by railroad . . . including
all floating equipment such as boats, barges, tugs, bridges and
ferries; and other transportation facilities used by or operated
in connection with any such carrier by railroad. . . .” Pub. L.
No. 257, 44 Stat. 577 (1926).
9
within the railroad industry. See New Prime, 139 S. Ct. at 543
& n.11, n.12.10
All this to say that “seamen” and “railroad employees”
were not random examples of the industries exempted from the
FAA. Rather, they are specific classes of workers already
subject to complex dispute-resolution schemes. The common
key between both is “workers over whom the commerce power
was most apparent.” Circuit City, 532 U.S. at 120. Congress
tied the exception in § 1 not to a general notion of commercial
conduct, or even transportation in general, but to the kinds of
10
That understanding tracks the text of the statute, as
“railroad” was understood to refer to “transport by train.”
Railroad, Black’s Law Dictionary (11th ed. 2019) (definition
of “railroad” dating to 1838); see also Railroad, Bouvier’s Law
Dictionary (8th ed. 1914) (“A railroad company is defined as
an association of men who engage in the business of hauling
passengers and freight.”) It also follows judicial interpretations
of railroad-related statutes. See generally Wells Fargo & Co.
v. Taylor, 254 U.S. 175, 187–88 (1920) (discussing the
differences between a common carrier and an express company
conducting business on, but not operating, a railroad and
concluding the latter was not a “common carrier by railroad”
under the Employers’ Liability Act of 1908); see also Edwards
v. Pac. Fruit Express Co., 390 U.S. 538, 540–41 (1968)
(characterizing the list of businesses found in the RLA
definition of “carriers” (express companies, sleeping-car
companies, carriers by railroad) to encompass “activities and
facilities intimately associated with the business of common
carrier by railroad”).
10
transportation work within “Congress’ undoubted authority to
govern.” Id. at 120. Having already passed laws to address the
disputes of these industries uniquely within the Article I, § 8
commerce power, Congress understandably exempted those
same transportation workers from the new FAA “for the simple
reason that it did not wish to unsettle established or developing
statutory dispute resolution schemes covering specific
workers.” Id. at 121. Tenney fights that narrow construction
and, in adding those who “work so closely related” to the class
of rail and sea workers identified, also runs into the limits on
Congress’s legislative authority over commerce.11
2. The FAA Exemption Focuses on Class
Informed by history, and framed in context of the entire
FAA, Tenney’s expansive reach is difficult to square with the
limits on Congress’s commerce power and the “narrow
11
When the FAA was adopted, the Commerce Clause
was seen as “a limit on state legislation that discriminated
against interstate commerce.” United States v. Lopez, 514 U.S.
549, 553 (1995); see also id. at 554 (citing Wickard v.
Filburn, 317 U.S. 111, 121 (1942)). It was not until the
watershed case of NLRB v. Jones & Laughlin Steel Corp. that
the Court held that intrastate activities that “have such a close
and substantial relation to interstate commerce that their
control is essential or appropriate to protect that commerce
from burdens and obstructions” are within Congress’s
regulatory power. 301 U.S. 1, 37 (1937). The understanding of
interstate commerce before Jones & Laughlin would not have
been as broad as the Tenney formulation.
11
construction” of the § 1 exemption repeatedly, and recently,
provided by the Supreme Court. Circuit City, 532 U.S. at 118;
see also Wallace v. Grubhub Holdings, Inc., 970 F.3d 798,
800–02 (7th Cir. 2020); Rittmann v. Amazon.com, Inc., 971
F.3d 904, 931–33 (9th Cir. 2020) (Bress, J., dissenting). So
what is the best reading of § 1? The answer appears in the text:
whether a “class of workers,” not any individual worker, is
“engaged in foreign or interstate commerce” as an ordinary and
regular part of the class of work. That turns our focus away
from the kind of businesses to the class of workers employed
by the firm engaged in interstate or foreign commerce. True,
tricky questions about some worker classes may persist. But
those questions should focus on the class of work performed,
rather than the function of individual workers or the scope of a
company’s operations.
That focus on “class,” not individual work, follows
from the residual clause, which the Supreme Court told us
should be “controlled and defined by reference to the
enumerated categories of workers which are recited just before
it.” Circuit City, 532 U.S. at 115. We are then instructed to
apply ejusdem generis, id. at 114, to find the sorts of workers
who are like “seamen” and “railroad employees”: the Court
called them “transportation workers.” Id. at 119.
To figure out who is a “transportation worker,” we must
ask whether a plaintiff is in the class of workers “actually
engaged in the movement of goods in interstate commerce.”
Id. at 112. Section 1 should apply, then, to employment
contracts of a class of workers “actually engaged in the
movement of goods in interstate commerce in the same way
that seamen and railroad workers are.” Asplundh Tree Expert
Co. v. Bates, 71 F.3d. 592, 601 (6th Cir. 1995). Is the interstate
movement of goods a “central part of the class members’ job
12
description”? Wallace, 970 F.3d at 801. Does the class of
workers operate “in a cross-boundary capacity” the way
seamen and railroad workers do? Rittman, 971 F.3d at 927
(Bress, J., dissenting).
These are the questions to ask under an ordinary reading
of the statute. Questions that Tenney takes out of the equation
in favor of an examination of work in general. Respectfully, it
is appropriate to reconsider that result before businesses
serving wine connoisseurs, pizza lovers, Etsy enthusiasts, and
home shoppers all find themselves redefined as sailors. A
result avoided by the best reading of § 1.
II. CONCLUSION
Returning the FAA to its original meaning will likely
displease those hoping to avoid the courtrooms where judges
and juries have resolved disputes since the Founding. Nor will
it satisfy those looking to exempt ever-more employees from
arbitration. Enforcing rather than editing laws does not always
please every crowd. See Lawrence B. Solum, Surprising
Originalism: The Regula Lecture, 9 ConLawNOW 235, 256–
57 (2018). It does, however, give everyone fair notice of the
rules. Perhaps the time has come for a different approach to
arbitration than the framework Congress created in 1926. If so,
that change must come from Congress. While that question is
considered, respectfully, courts can return the FAA to its
ordinary meaning and give ordinary workers the benefits and
obligations of arbitration written into law.
13
SHWARTZ, J., dissenting.
Robert Harper delivered packages for Amazon.
Delivery drivers like Harper operated under a “Terms of
Service” agreement (“TOS”). Section 11 of the TOS was
entitled “Arbitration Agreement.” It provided, among other
things, that the driver and Amazon would resolve disputes
through “final and binding arbitration.” App. 62
(capitalization omitted). The parties further “agree[d] that the
Federal Arbitration Act [“FAA”] and applicable federal law
will govern any dispute that may arise between the parties.”
App. 67. Section 12 had a separate choice of law provision
that applied to the remainder of the TOS. It stated that the TOS
is “governed by the law of the state of Washington without
regard to its conflict of laws principles, except for [the
arbitration provision] . . . which is governed by the [FAA] and
applicable federal law.” App. 67. Thus, the TOS contemplated
that federal law would govern the arbitration provision.
Harper filed a complaint alleging that Amazon violated
the New Jersey wage and hour laws. In response, Amazon
moved to compel arbitration based on federal and state law.
The District Court examined the TOS, observed that the FAA
“govern[ed] all disputes related to arbitration,” App. 18, and
attempted to determine whether Harper is a member of a class
of workers that are exempt from the FAA under § 1’s residual
clause, 9 U.S.C. § 1. Because the pleadings lacked sufficient
facts to determine whether the FAA applied, the District Court
ordered limited discovery on this issue, consistent with Singh
v. Uber Technologies, Inc., 939 F.3d 210 (3d Cir. 2019). The
Court further determined that it would decide if the FAA
applies before addressing whether Washington or New Jersey
law would compel arbitration absent the FAA.
1
My colleagues agree that the District Court properly
applied Singh but say that the Court erred in allowing
discovery to proceed before deciding whether state law would
compel arbitration. As a result, they have vacated the Court’s
order and directed it to examine what could be tricky state law
issues1 before even determining that the parties’ chosen federal
law does not apply. While I fully understand the goals of
arbitration and the desire to expeditiously resolve cases,
compelling arbitration here is possible only because of the
parties’ contract, which itself provides that the FAA governs
the arbitration provision. Because the District Court followed
the plain language of that contract and faithfully applied
binding precedent, there is no reason to require the Court to
examine state law at this point. As a result, I respectfully
dissent for three reasons.
1
The two Courts of Appeals that have examined the
same contract reached different conclusions on what state’s
law, if any, applies to the arbitration provision absent
application of the FAA. Compare Rittmann v. Amazon.com,
Inc., 971 F.3d 904, 920-21 (9th Cir. 2020) (concluding, after
determining that Amazon Flex drivers are exempt from the
FAA, that there was no agreement to arbitrate under state law
and thus “there is no [state] law that governs the arbitration
provision”), cert. denied, 141 S. Ct. 1374 (2021) (Mem.), with
Waithaka v. Amazon.com, Inc., 966 F.3d 10, 26-35 (1st Cir.
2020) (concluding, after determining that Amazon Flex drivers
are exempt from the FAA, that Washington law applies to the
arbitration provision, and then conducting a conflicts-of-law
analysis between Washington law and the law of the forum
state, Massachusetts, and applying the forum’s law), cert.
denied, --- S. Ct. ----, No. 20-1077, 2021 WL 2519107 (U.S.
June 21, 2021).
2
First, the TOS’s arbitration provision states that the
parties will resolve disputes through arbitration under the FAA
and applicable federal law. Importantly, the TOS’s choice of
law clause disclaims the applicability of Washington law to
arbitration issues and repeats that the FAA governs the TOS’s
arbitration provision. The District Court’s decision to first
determine whether the FAA applies appropriately sought to
effectuate the plain language of the agreement, a core tenet of
common law contractual interpretation. See Pacifico v.
Pacifico, 920 A.2d 73, 77 (N.J. 2007); Berg v. Hudesman, 801
P.2d 222, 226 (Wash. 1990).2 To do otherwise would be
contrary to the agreement’s clear text.3
Second, binding precedent supports the sequence that
the District Court followed by first seeking to determine
whether the parties’ chosen law, here, the FAA, applies. Start
with New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019). There,
the Supreme Court examined whether a delegation clause
permits an arbitrator to decide whether the FAA applies, i.e.,
whether the class of workers is exempt from the FAA under §
1. The Court held that the applicability of an exemption is an
“antecedent question” and specifically stated that “a court
should decide for itself whether § 1’s . . . exclusion applies
2
Because the parties dispute whether, absent
application of the FAA, New Jersey or Washington law may
apply to the arbitration provision, I cite both Washington and
New Jersey law.
3
Additionally, even if ambiguous, any ambiguities in
the contract are construed against the drafter, here, Amazon.
See, e.g., Dennis v. Great Am. Ins. Co., 503 P.2d 1114, 1117
(Wash. Ct. App. 1972); see also Rittmann, 971 F.3d at 920
(construing this ambiguity against Amazon).
3
before ordering arbitration.” Id. at 537. The Court further
stated that “before invoking the severability principle, a court
should determine[] that the contract in question is within the
coverage of the” FAA. Id. at 538 (alteration in original and
quotation marks and citations omitted).4 Thus, New Prime
teaches that if the parties have selected the FAA as the
governing law, a court should first examine whether it applies
before turning to state law.
Relying on New Prime, we have reached the same
conclusion. In Singh, the parties, like the parties here, entered
an agreement that “state[d] that the FAA would govern” the
arbitration agreement. 939 F.3d at 216. Based on that choice
and the lean factual record, we determined that we would
“leave it to the District Court to address” arguments
challenging arbitration and the applicability of state law “once
it determines whether the FAA applies.” Id. at 228. Thus, New
Prime and Singh instruct that, where the parties have selected
4
The agreement in New Prime provided that it was
governed by Missouri law and that the parties agreed to
arbitrate disputes “in accordance with Missouri’s Arbitration
Act and/or the Federal Arbitration Act.” Oliveira v. New
Prime, Inc., 141 F. Supp. 3d 125, 128 (D. Mass. 2015). Despite
this language, New Prime sought to compel arbitration under
the FAA. See Oliveira v. New Prime, Inc., 857 F.3d 7, 11 (1st
Cir. 2017) (“[New] Prime moved to compel arbitration under
the FAA and stay the proceedings.”). The fact that the movant
relied on only federal law does not appear to have impacted the
Supreme Court’s pronouncements about the FAA. See, e.g.,
New Prime, 139 S. Ct. at 537 (“[A] court should decide for
itself whether § 1’s ‘contracts of employment’ exclusion
applies before ordering arbitration.”).
4
the FAA as the law that governs arbitration, the court should
first review whether the FAA covers the relevant class of
workers.5
We have applied the same approach even where the
parties agree that the FAA and/or a specific state’s law
governs. In Palcko v. Airborne Express, Inc., 372 F.3d 588 (3d
Cir. 2004), for instance, the parties entered an agreement that
stated the FAA “shall govern the interpretation, enforcement,
and all proceedings pursuant to this Agreement. To the extent
that the [FAA] is inapplicable, Washington law pertaining to
agreements to arbitrate shall apply.” Id. at 590. In Palcko, we
followed the agreement, which required us to first examine the
applicability of the FAA, and we concluded based upon the
type of tasks performed that the worker was exempt under § 1.
Id. at 593-94. We then explained that since the FAA does not
preempt application of state arbitration law, we would,
consistent with the contract’s text, next examine state law. Id.
at 595-96. Thus, we endorsed determining whether the FAA
5
The majority asserts that the issue of sequencing was
not addressed in Singh. They first cite to a part of the Singh
majority that discussed the sequence of considering various
sources of factual material. See 939 F.3d at 227-28. They then
cite to the concurrence’s disagreement with the sequence—
addressing the FAA’s applicability first—that the Singh
majority endorsed. See 939 F.3d at 231 (Porter, J.,
concurring). Thus, it is not accurate to say Singh does not
address sequencing.
5
applies before proceeding to state law, noting that “the effect
of [the exemption in FAA §] 1 is merely to leave the
arbitrability of disputes . . . as if the [FAA] had never been
enacted.” Id. at 596 (quoting Mason-Dixon Lines, Inc. v. Local
Union No. 560, 443 F.2d 807, 809 (3d Cir. 1971)). Hence,
Palcko also shows that the District Court correctly addressed
the FAA issue before examining state law.
Third, two circuit courts have evaluated the very
agreement at issue in this case and each first examined, albeit
without discovery, whether the FAA applies or whether
employees holding jobs like Harper belong to a class of
workers exempt from the FAA. See Rittmann v. Amazon.com,
Inc., 971 F.3d 904, 915-19 (9th Cir. 2020), cert. denied, 141 S.
Ct. 1374 (2021) (Mem.); Waithaka v. Amazon.com, Inc., 966
F.3d 10, 17-26 (1st Cir. 2020), cert. denied, --- S. Ct. ----, No.
20-1077, 2021 WL 2519107 (U.S. June 21, 2021). Once again,
given the TOS’s language, our sister circuits first considered
whether the parties’ chosen law—the FAA—applied before
turning to state law.
The District Court, relying on and acting in accordance
with this body of authority, followed suit. It correctly
examined the agreement, observed that the agreement
exclusively selected the FAA as the law that applied to the
arbitration provision, sought to determine whether the FAA
governed the class of workers to which Harper belongs,
concluded that the factual record was insufficient to make such
a conclusion, ordered the parties to engage in limited discovery
consistent with Singh, and declined to reach whether or which
state law applied pending resolution of whether the expressly
selected law—the FAA—governed. Because the District
Court’s ruling fully comported with the plain language of the
6
parties’ agreement and the binding precedent, I would affirm
in all respects.
7