Case: 19-1848 Document: 00117616362 Page: 1 Date Filed: 07/17/2020 Entry ID: 6353395
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`United States Court of Appeals
`For the First Circuit
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`
`
`No. 19-1848
`BERNARD WAITHAKA, on behalf of himself and
`all others similarly situated,
`
`Plaintiff, Appellee,
`v.
`AMAZON.COM, INC.; AMAZON LOGISTICS, INC.,
`Defendants, Appellants.
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Timothy S. Hillman, U.S. District Judge]
`
`
`Before
`
`Howard, Chief Judge,
`Lipez, and Thompson, Circuit Judges.
`
`
`David B. Salmons, with whom James P. Walsh, Jr., Noah J.
`
`Kaufman, Michael E. Kenneally, and Morgan, Lewis & Bockius LLP
`were on brief, for appellants.
`
`Harold L. Lichten, with whom Shannon Liss-Riordan, Adelaide
`H. Pagano, and Lichten & Liss-Riordan, P.C. were on brief, for
`appellee.
`
`Archis A. Parasharami and Mayer Brown LLP on brief for the
`Chamber of Commerce of the United States of America and the
`National Association of Manufacturers, amici curiae.
`
`Corbin K. Barthold, Richard A. Samp, and Washington Legal
`Foundation on brief for Washington Legal Foundation, amicus
`curiae.
`Toby J. Marshall, Blythe H. Chandler, Elizabeth A. Adams,
`Terrell Marshall Law Group PLLC, Jennifer D. Bennett, and Public
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`Justice on brief for Public Justice, amicus curiae.
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`July 17, 2020
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`LIPEZ, Circuit Judge. This putative class action
`requires us to decide whether employment contracts of certain
`delivery workers -- those locally transporting goods on the last
`legs of interstate journeys -- are covered by the Federal
`Arbitration Act ("FAA" or the "Act"), given its exemption 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. We have not considered the scope of the exemption
`since the Supreme Court held in Circuit City Stores, Inc. v. Adams,
`532 U.S. 105 (2001), that this provision is limited to employment
`contracts of "transportation workers." After close examination of
`the text and purpose of the statute and the relevant precedent, we
`now hold that the exemption encompasses the contracts of
`transportation workers who transport goods or people within the
`flow of interstate commerce, not simply those who physically cross
`state lines in the course of their work.
`Plaintiff-appellee Bernard Waithaka, a so-called "last
`mile" delivery driver for defendants-appellants Amazon.com, Inc.
`("Amazon.com") and its subsidiary, Amazon Logistics, Inc. ("Amazon
`Logistics"),1 falls within this category of transportation workers
`whose contracts are exempt from the FAA. Hence, we conclude that
`the FAA does not govern the enforceability of the mandatory
`
`
`1 We refer collectively to appellants as "Amazon."
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`arbitration provision of his employment agreement with appellants.
`Because that provision prohibits proceeding on a class basis,
`either in the arbitral or judicial forum, we also agree with the
`district court that the arbitration provision is unenforceable
`under state law. Therefore, we affirm the district court's denial
`of appellants' motion to compel arbitration.
`I.
`
`A. Factual Background2
`
`
`Amazon.com and Amazon Logistics are based in Seattle,
`Washington. Amazon sells retail products online to customers
`throughout the United States. To "ensure that millions of packages
`reach their final destination as efficiently as possible," Amazon
`Logistics provides package delivery services "through the last
`mile of the order." Amazon attributes its success as "one of the
`world's largest online retailers," in part, to its "accurate and
`timely package delivery."
`Historically, Amazon has used third-party delivery
`providers, such as FedEx, UPS, and the United States Postal
`Service, to deliver its products. In recent years, however, Amazon
`has also begun to contract with independent contractors for
`
`
`2 "Because [Amazon's] motion to compel arbitration was made
`in connection with a motion to dismiss or stay, we draw the
`relevant facts from the operative complaint and the documents
`submitted to the district court in support of the motion to compel
`arbitration." Cullinane v. Uber Techs., Inc., 893 F.3d 53, 55
`(1st Cir. 2018).
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`delivery services through its Amazon Flex ("AmFlex") smartphone
`application. These contractors, like Waithaka, sign up for
`delivery shifts and then use their own methods of transportation
`-- typically, a private vehicle -- to deliver products ordered
`through Amazon within a specified timeframe and in compliance with
`other Amazon service standards. AmFlex contractors are paid an
`hourly rate for their delivery shifts. But if contractors require
`more time than a normal shift to complete all of their deliveries,
`they are not compensated for the additional time. Nor do they
`receive any reimbursement for their gas, car maintenance, or
`cellphone data expenses.
`
`
`To begin work with AmFlex, a prospective contractor must
`download the AmFlex app, create an account, login, and agree to
`the AmFlex Independent Contractor Terms of Service (the
`"Agreement" or the "TOS"). The second paragraph of the TOS states:
`YOU AND AMAZON AGREE TO RESOLVE DISPUTES
`BETWEEN YOU AND AMAZON ON AN INDIVIDUAL 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.
`Section 11 of the Agreement (the "dispute resolution
`section") further explains the arbitration requirement and also
`states that the parties waive their rights to bring class actions:
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`11. Dispute Resolution, Submission to
`Arbitration.
`
`a) 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. TO THE EXTENT
`PERMITTED BY LAW, THE PRECEDING SENTENCE
`APPLIES TO ANY DISPUTE OR CLAIM THAT COULD
`OTHERWISE BE ASSERTED BEFORE A GOVERNMENT
`ADMINISTRATIVE AGENCY.
`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.
`. . .
`
`g) THIS AGREEMENT SHALL NOT BE INTERPRETED AS
`REQUIRING EITHER PARTY TO ARBITRATE DISPUTES
`ON A CLASS, COLLECTIVE OR REPRESENTATIVE
`BASIS, EVEN IF A COURT OR ARBITRATOR
`INVALIDATES OR MODIFIES OR DECLINES TO ENFORCE
`THIS AGREEMENT IN WHOLE OR IN PART.3
`
`Two parts of the Agreement pertain to the parties' choice
`
`
`of law. The dispute resolution section includes a provision
`stating that "the Federal Arbitration Act and applicable federal
`law will govern any dispute that may arise between the parties."
`
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`
`3 For clarity, we refer to the provision of the dispute
`resolution section that relates to the arbitration requirement
`(subsection a) as the "arbitration provision" and those provisions
`that relate to class claims (subsections b and g, as well as
`several other provisions of Section 11 that reiterate that the
`Agreement does not permit the parties to pursue claims or receive
`relief on a class basis) as the "class waiver provisions."
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`In a separate section (the "governing law section"), the TOS
`indicates the law that governs the interpretation of the Agreement:
`12. Governing Law.
`The interpretation of this Agreement 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, which is governed by the Federal
`Arbitration Act and applicable federal law.
`
`
`
`Finally, the Agreement includes a severability
`provision, which states that "[i]f 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."
`
`
`Waithaka, a resident of Massachusetts, "on-boarded" into
`the AmFlex program on January 13, 2017, and accepted the TOS on
`that same date. He did not opt out of the arbitration agreement.
`Since 2017, Waithaka has collected packages for delivery in
`Massachusetts and has not crossed state lines in the course of his
`deliveries.
`B. Procedural Background
`
`
`Waithaka filed this action in Massachusetts state court
`in August 2017, asserting three claims against Amazon: (1)
`misclassification of AmFlex drivers as independent contractors,
`rather than employees; (2) violation of the Massachusetts Wage Act
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`by requiring AmFlex drivers to "bear business expenses necessary
`to perform their work"; and (3) violation of the Massachusetts
`Minimum Wage Law. He seeks to bring these claims on behalf of
`himself and "individuals who have worked as delivery drivers for
`[appellants] in the Commonwealth of Massachusetts and have been
`classified as independent contractors."
`Although Amazon timely removed the case to federal
`court, the district court remanded the case after concluding that
`the putative class did not meet the requisite amount in controversy
`for jurisdiction pursuant to the Class Action Fairness Act
`("CAFA"). Waithaka v. Amazon.com, Inc., No. 17-40141-TSH, 2018 WL
`4092074, at *3 (D. Mass. Aug. 28, 2018). However, Amazon was
`successful when it again removed the case in September 2018.
`Concluding that the amount in controversy had increased since the
`first removal and that the second removal was not time-barred, the
`district court denied Waithaka's second motion to remand. Waithaka
`v. Amazon.com, Inc., 363 F. Supp. 3d 210, 212-14 (D. Mass. 2019).
`
`
`In April 2019, Amazon moved to compel arbitration
`pursuant to the TOS, or, in the alternative, to transfer the case
`to the United States District Court for the Western District of
`Washington so that the case could proceed with similar, earlier-
`filed litigation that was pending. In August 2019, the district
`court denied in part and granted in part the motion. Waithaka v.
`Amazon.com, Inc., 404 F. Supp. 3d 335, 339 (D. Mass. 2019).
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`Specifically, the district court concluded that Waithaka's
`Agreement was exempt from the FAA, that Massachusetts law therefore
`governed the enforceability of the arbitration provision, and that
`the provision was unenforceable based on Massachusetts public
`policy. Id. at 343, 346, 348. However, the court granted
`appellants' alternative request to transfer the case, which has
`since occurred.4 Id. at 349-51.
`Amazon timely filed this appeal, challenging the
`district court's denial of the motion to compel arbitration. The
`parties agreed to stay the Washington proceedings pending the
`resolution of the appeal.
`
`II.
`
`
`The interpretation of arbitration agreements and the
`issuance of orders compelling arbitration, or declining to do so,
`are subject to de novo review. Gove v. Career Sys. Dev. Corp.,
`689 F.3d 1, 4 (1st Cir. 2012). Similarly, we review de novo choice
`of law determinations. Robidoux v. Muholland, 642 F.3d 20, 22
`(1st Cir. 2011).
`A. Background of the FAA
`
`
`Congress passed the FAA in 1925 "to overcome judicial
`hostility to arbitration agreements." Circuit City, 532 U.S. at
`118 (quoting Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S.
`
`
`4 The district court's decision to transfer the case is not
`challenged in this appeal.
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`265, 272-73 (1995)). The Act reflects a "liberal federal policy
`favoring arbitration agreements," Moses H. Cone Mem'l Hosp. v.
`Mercury Constr. Corp., 460 U.S. 1, 24 (1983), and provides that
`"[a] written provision in . . . a contract evidencing a transaction
`involving commerce to settle by arbitration a controversy
`thereafter arising out of such contract . . . shall be valid,
`irrevocable, and enforceable," 9 U.S.C. § 2 (emphasis added). The
`Supreme Court has held that the phrase "involving commerce" in
`Section 2 -- referred to as the "coverage" provision of the FAA,
`Circuit City, 532 U.S. at 115 -- reflects Congress's "intent to
`exercise [its] commerce power to the full," Allied-Bruce, 513 U.S.
`at 277.
`
`Despite the broad scope of Section 2, the FAA does not
`apply to all contracts that include arbitration provisions.
`Section 1 of the Act exempts employment contracts of certain
`categories of workers from the Act's coverage. See 9 U.S.C. § 1.
`Specifically, the Act does not apply "to contracts of employment
`of seamen, railroad employees, or any other class of workers
`engaged in foreign or interstate commerce." Id. This case
`concerns the scope of the residual clause of that exemption: "or
`any other class of workers engaged in foreign or interstate
`commerce."
`In Circuit City the Supreme Court rejected the
`contention that Section 1 exempts from the FAA's coverage all
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`employment contracts. 532 U.S. at 119. Instead, it held that the
`provision exempts "only contracts of employment of transportation
`workers." Id. In reaching this conclusion, the Court articulated
`principles for interpreting the FAA, and Section 1 in particular.
`First, phrases similar to the language of Section 1 --
`"in commerce" and "engaged in commerce" -- are terms of art that
`have not been interpreted as expansively as the phrase "involving
`commerce," the terminology used in Section 2. Id. at 115-16. To
`reach that conclusion, the Court examined how these respective
`phrases had been interpreted in other statutory contexts. Id. at
`116-17 (citing Jones v. United States, 529 U.S. 848, 855 (2000)
`(interpreting federal arson statute); United States v. Am. Bldg.
`Maint. Indus., 422 U.S. 271, 279-80 (1975) (interpreting Clayton
`Act); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 199-202
`(1974) (interpreting Robinson-Patman Act and Clayton Act); FTC v.
`Bunte Bros., Inc., 312 U.S. 349, 350-51 (1941) (interpreting
`Federal Trade Commission Act)). Second, the residual clause must
`be interpreted in light of the specifically enumerated categories
`of workers that directly precede it, consistent with the ejusdem
`generis canon of statutory construction.5 Id. at 114-15. Third,
`
`
`5 Pursuant to this canon of construction, "[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." Circuit
`City, 532 U.S. at 114-15 (alteration in original) (quoting 2A
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`the Act's pro-arbitration purpose counseled in favor of narrowly
`construing the Section 1 exemption. Id. at 118-19. Finally, while
`there was "sparse" legislative history on the Section 1 exemption,
`id. at 119, excluding transportation workers from the FAA's
`coverage was consistent with "Congress'[s] demonstrated concern
`with transportation workers and their necessary role in the free
`flow of goods," id. at 121.
`B. Scope of the Transportation Worker Exemption
`
`
`Using the principles articulated in Circuit City as a
`guide, we turn now to the interpretive question raised in this
`case: does Waithaka belong to a "class of workers engaged in
`foreign or interstate commerce," such that his contract with
`appellants is exempt from the FAA's coverage?
`In answering that question, we note that the Supreme
`Court recently held that the Section 1 exemption does not apply
`exclusively to contracts of "employees," but rather to "agreements
`to perform work," including those of independent contractors. New
`Prime Inc. v. Oliveira, 139 S. Ct. 532, 544 (2019). Accordingly,
`there is no dispute that the independent contractor agreement at
`issue here would fall within the Section 1 exemption if Waithaka
`qualifies as a transportation worker.
`
`
`Norman J. Singer, Sutherland on Statutes and Statutory
`Construction § 47.17 (1991)).
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`Importantly, in New Prime, the Court supplemented the
`interpretive guidance of Circuit City by instructing that we must
`interpret the Section 1 exemption according to the "fundamental
`canon of statutory construction that words generally should be
`interpreted as taking their ordinary . . . meaning . . . at the
`time Congress enacted the statute." 139 S. Ct. at 539 (alterations
`in original) (internal quotation marks omitted) (quoting Wisc.
`Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018)). As a
`threshold matter, the parties disagree about which words within
`the exemption (the Act 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 (emphasis
`added)) are important to our interpretive task. Amazon asserts
`that the key to understanding the scope of the residual clause is
`the meaning of the phrase "interstate commerce." Whether the
`contracts of a group of workers fall within the ambit of the
`clause, Amazon contends, turns on the activities the workers were
`hired to perform. Only if the workers' activities themselves
`qualify as "interstate commerce"6 can they qualify as
`transportation workers whose employment contracts are exempt from
`the FAA. Because Waithaka and his fellow local delivery drivers
`
`
`6 Because the parties do not contend that Waithaka "engaged
`in foreign . . . commerce," we focus only on the meaning of "engaged
`in . . . interstate commerce." See 9 U.S.C. § 1.
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`do not personally carry goods across state lines and engage only
`in intrastate activities, Amazon maintains that they are not
`covered by the residual clause.
`Waithaka counters that "engaged in" is the crucial
`phrase for understanding the exemption. When the FAA was enacted
`in 1925, Waithaka insists, there was an understanding that workers
`could be "engaged in . . . interstate commerce" without crossing
`state lines; rather, this phrase included workers who
`"transport[ed] goods or passengers (or facilitat[ed] the
`transportation of goods and passengers) within a single state that
`[were] ultimately going to or coming from another state."
`We agree with Waithaka that understanding the scope of
`the residual clause turns not only on the definition of "interstate
`commerce," but also on the words that precede that phrase: "engaged
`in." The Court in Circuit City did not look solely to the phrase
`"interstate commerce" to interpret the scope of the Section 1
`exemption. Rather, it emphasized the significance of the words
`modifying that phrase. 532 U.S. at 115-17. Therefore, to
`determine what it meant to be "engaged in" interstate commerce in
`1925, and thus whether Waithaka and his fellow AmFlex workers fall
`within the scope of the transportation worker exemption, we
`consider the interpretation of statutes contemporaneous with the
`FAA, the sequence of the text of the exemption, the FAA's
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`structure, and the purpose of the exemption and the FAA itself.
`Cf. id. at 111-21.
`1. Contemporaneous Statutes
`
`In considering the scope of the phrase "engaged in"
`interstate commerce, the Court in Circuit City first rejected an
`argument that it should give the phrase "a broader construction
`than justified by its evident language" simply because the FAA was
`enacted at a time when Congress's power to regulate pursuant to
`the Commerce Clause was circumscribed. 532 U.S. at 116-18. The
`petitioner in Circuit City asserted that, because the phrase
`"engaged in . . . interstate commerce," as it was understood in
`1925, "came close to expressing the outer limits of Congress['s
`Commerce Clause] power as then understood," the Court should
`interpret the Section 1 exemption to be co-extensive now with the
`more expansive modern understanding of the Commerce Clause. Id.
`at 116. According to the logic of the petitioner's argument,
`Congress likely thought in 1925 that it was excluding all
`employment contracts within the scope of its Commerce Clause
`authority, and, hence, the Court should interpret Section 1 as
`exempting the broader range of contracts that are now understood
`to be within Congress's Commerce Clause authority. See id.
`The Court rejected that argument, concluding that it
`would lead to a constantly shifting understanding of the meaning
`of the statutory language. Id. at 117. Rather, the Court affirmed
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`that its task in interpreting Section 1 was to assess the meaning
`of the words in the exemption when written. See id. at 117-19.
`Thus, it looked to the interpretation of similar phrases in
`statutes contemporaneous to the FAA. Id. at 117-18. Relying on
`its interpretation of the phrase "engaged in commerce" in the
`Clayton Act, enacted in 1914, the Court noted that this
`jurisdictional phrase "appears to denote only persons or
`activities within the flow of interstate commerce." Id. at 118
`(quoting Gulf Oil Corp., 419 U.S. at 195). That definition
`reflected "[t]he plain meaning of the words 'engaged in commerce,'"
`which "is narrower than the more open-ended formulations
`'affecting commerce' and 'involving commerce'" -- phrases that
`have been interpreted as expressing Congress's intent to exercise
`its Commerce Clause power to its fullest extent.7 Id.
`Consistent with the approach used in Circuit City,
`Waithaka urges us to consider the Court's interpretation of a
`similar jurisdictional phrase in the Federal Employers' Liability
`
`
`7 In Circuit City, the Court acknowledged that common
`jurisdictional phrases like "engaged in interstate commerce" do
`not "necessarily have a uniform meaning whenever used by Congress."
`532 U.S. at 118 (quoting Am. Bldg. Maint. Indus., 422 U.S. at 277).
`Although Amazon seizes on this language, asserting that this
`admonition means we would be remiss to rely on the meaning given
`to these jurisdictional phrases in contemporaneously passed
`statutes, Amazon overstates the Court's qualification. By using
`as one of our interpretive tools the Court's interpretation of
`statutes contemporaneous with the FAA, we simply follow the Court's
`lead.
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`Act (the "FELA"), which he contends is particularly helpful for
`understanding what it meant for a transportation worker to be
`"engaged in interstate commerce" at the time of the FAA's enactment
`in 1925. Passed in 1908, the FELA contains language nearly
`identical to that of Section 1 of the FAA. 45 U.S.C. § 51 (1908);
`see Tenney Eng'g, Inc. v. United Elec. Radio & Mach. Workers of
`Am., (U.E.) Local 437, 207 F.2d 450, 453 (3d Cir. 1953) (noting
`that Congress "must have had [the FELA] in mind" when drafting the
`residual clause in Section 1 of the FAA, given that Congress
`"incorporat[ed] almost exactly the same phraseology" into the
`FAA).
`
`In relevant part, that statute provided 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." 45 U.S.C. § 51 (1908). Congress passed this
`version of the FELA after the Supreme Court held that an earlier
`version -- which had provided coverage to all employees of a
`carrier engaged in interstate commerce -- went beyond Congress's
`Commerce Clause power, as it was then understood, and was therefore
`unconstitutional. See The Employers' Liability Cases, 207 U.S.
`463, 498-99, 504 (1908). Unlike the earlier version, the amended
`statute provided coverage only when both the railroad and the
`employee were "engaged in interstate commerce" at the time of the
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`injury.8 Second Employers' Liability Cases, 223 U.S. 1, 51-52
`(1912).
`In numerous cases, the Supreme Court considered when a
`
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`railroad employee was "engaged in interstate commerce," such that
`the FELA provided coverage for injuries sustained on the job.
`Whether a worker had moved across state lines was not dispositive.
`Rather, the Court concluded that workers "engaged in interstate
`commerce" did not refer only to those workers 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, see, e.g., Phila. & Reading
`Ry. Co. v. Hancock, 253 U.S. 284, 285-86 (1920), and (2) those who
`were not involved in transport themselves but were in positions
`"so closely related" to interstate transportation "as to be
`practically a part of it," see Shanks v. Del., Lackwanna, & W.R.R.
`Co., 239 U.S. 556, 558-59 (1916) (collecting cases).
`
`Although Waithaka contends that both categories supply
`helpful guidance for assessing whether workers with activities
`similar to his would have been "engaged in . . . interstate
`
`
`8 Although the text of the FELA refers to workers "employed"
`in interstate commerce, the cases interpreting the statute say
`that the words "employed" and "engaged" are interchangeable. See,
`e.g., Phila., B. & W.R.R. Co. v. Smith, 250 U.S. 101, 102, 104
`(1919) (considering whether employee was "engaged in interstate
`commerce within the meaning of the statute" and concluding that
`"he was employed . . . in interstate commerce").
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`Case: 19-1848 Document: 00117616362 Page: 19 Date Filed: 07/17/2020 Entry ID: 6353395
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`commerce" in 1925, we limit our focus to the first group -- those
`who transported goods themselves. Because there is no dispute
`that Waithaka and other AmFlex workers are involved in such
`transport, the FELA precedents pertaining to the narrower category
`of workers who were themselves transporting goods that were moving
`between states are most relevant for our purpose. Accordingly, we
`do not determine whether the second category of workers considered
`to be "engaged in interstate commerce" for purposes of the FELA --
`those who were "engaged in interstate commerce" by virtue of the
`work
`close
`relationship
`between
`their
`and
`interstate
`transportation -- are also transportation workers "engaged in
`. . . interstate commerce" for purposes of the FAA.9
`
`
`We therefore focus on the FELA precedents pertaining to
`workers who were transporting goods that were moving interstate
`
`
`9 In declining to consider the applicability of this second
`line of cases from the FELA context to the FAA, we do not imply
`that the contracts of workers "practically a part" of interstate
`transportation -- such as workers sorting goods in warehouses
`during their interstate journeys or servicing cars or trucks used
`to make deliveries -- necessarily fall outside the scope of the
`Section 1 exemption. Some of our sister circuits have described
`Section 1 as covering workers "who are actually engaged in the
`movement of interstate or foreign commerce or in work so closely
`related thereto as to be in practical effect part of it." See,
`e.g., Tenney, 207 F.2d at 452. And in 1925 the preceding
`categories of "seamen" and "railroad employees" were understood to
`include workers who were not themselves engaged in transportation
`activities. See New Prime, 139 S. Ct. at 542-43 (noting that "[a]t
`the time of the [FAA]'s passage, shipboard surgeons who tended
`injured sailors were considered 'seamen'"). Nevertheless, we
`choose to decide this case narrowly, leaving for another day the
`resolution of the "closely related to" question.
`
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`Case: 19-1848 Document: 00117616362 Page: 20 Date Filed: 07/17/2020 Entry ID: 6353395
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`-- consistent with Circuit City's own focus on "the flow of
`interstate commerce." Examining these cases reveals that the Court
`consistently has held that a worker transporting goods that had
`come from out of state or that were destined for out-of-state
`locations was "engaged in interstate commerce," even if the
`worker's role in transporting the goods occurred entirely within
`a single state. In Seaboard Air Line Railway v. Moore, 228 U.S.
`433 (1913), the Court held that a railroad worker thrown from a
`train was "engaged in interstate commerce" at the time of his
`injury because the train was hauling two freight cars of lumber in
`Florida that were destined for New Jersey. Id. at 434-35. And,
`in Philadelphia & Reading Railway Co. v. Hancock, 253 U.S. 284
`(1920), the Court concluded that an injured railroad worker who
`was operating a train loaded with coal to be shipped out of state
`was engaged in interstate commerce, even though he was operating
`the train exclusively in Pennsylvania as it carried coal two miles
`from a coal mine to a railroad storage yard. Id. at 285-86. The
`Court noted that
`[t]he coal was in the course of transportation
`to another state when the cars left the mine.
`There was no interruption of the movement; it
`always continued towards points as originally
`intended. The determining circumstance is
`that the shipment was but a step in the
`transportation of the coal to real and
`ultimate destinations in another state.
`
`
`- 20 -
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`Case: 19-1848 Document: 00117616362 Page: 21 Date Filed: 07/17/2020 Entry ID: 6353395
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`Id. at 286. Ultimately, the Court concluded that a "trainman" was
`employed in interstate commerce "if any of the cars in his train
`contained interstate freight." Id. at 285.
`However, when a railroad worker was working on a railroad
`car that was not carrying goods destined for or coming from another
`state, the Court drew the line and concluded that the worker was
`not, at that point, "engaged in interstate commerce." See Ill.
`Cent. R.R. Co. v. Behrens, 233 U.S. 473, 477-78 (1914) (holding
`that a worker moving several freight cars "all loaded with
`intrastate freight" within the city of New Orleans when he was
`fatally injured was not engaged in interstate commerce).
`Amazon marshals several reasons why these FELA
`precedents do not shed light on the meaning of "engaged in . . .
`interstate commerce" within Section 1 of the FAA. First, Amazon
`contends that Circuit City dismisses the FELA specifically as
`irrelevant to interpreting the FAA. This contention misconstrues
`Circuit City. There, the Court referenced two cases interpreting
`the FELA in recognizing that, in the early twentieth century,
`"engaged in interstate commerce" "came close to expressing the
`outer limits of Congress'[s] power as then understood." 532 U.S.
`at 116 (citing The Employers' Liability Cases, 207 U.S. at 498,
`and Second Employers' Liability Cases, 223 U.S. at 48-49).
`However, by discussing these cases and, as we have already noted,
`refusing to interpret the phra