US Supreme Court Briefs

No. 99-1379

In the Supreme Court of the United States

 

CIRCUIT CITY STORES, INC., PETITIONER

v.

SAINT CLAIR ADAMS

 

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

 

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

SETH P. WAXMAN
Solicitor General
Counsel of Record
BARBARA D. UNDERWOOD
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

HENRY L. SOLANO
Solicitor
Department of Labor
Washington, D.C. 20210
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Associate General Counsel
ROBERT J. GREGORY
Senior Attorney
Equal Employment
Opportunity Commission
Washington, D.C. 20507

QUESTION PRESENTED

Whether the Federal Arbitration Act applies to contracts of employment.

 

In the Supreme Court of the United States

 

No. 99-1379

CIRCUIT CITY STORES, INC., PETITIONER

v.

SAINT CLAIR ADAMS

 

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

 

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

 

INTEREST OF THE UNITED STATES

This case concerns the proper interpretation of the Federal ArbitrationAct (FAA), 9 U.S.C. 1 et seq., as applied to a pre-dispute employment contract.Although this case involves claims of discrimination under state law, theUnited States has a significant interest in its outcome. The scope of theexclusion in Section 1 of the FAA for employment contracts may affect theenforcement of arbitration agreements covering claims of employment discriminationunder federal civil rights statutes. Similarly, this Court's ruling mayaffect employment discrimination claims brought by the Secretary of Laboragainst federal contractors, see 29 U.S.C. 793-794 (1994 & Supp. IV1998); 38 U.S.C. 4211-4212 (1994 & Supp. IV 1998), and financial aidrecipients, 42 U.S.C. 2000d et seq.; 29 U.S.C. 2938 (Supp. IV 1998). Inaddition, this case may affect enforcement of anti-retaliation provisionsin federal statutes designed to protect employees who report public healthand safety violations, as well as enforcement of various federal labor standards.See, e.g., 30 U.S.C. 815(c); 29 U.S.C. 660(c); 29 U.S.C. 216 (1994 &Supp. IV 1998); 29 U.S.C. 2617 (1994 & Supp. IV 1998). Finally, stateanti-discrimination laws play an integral role in the "scheme of interrelatedand complementary state and federal enforcement" under federal anti-discriminationstatutes. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 65 (1980).The United States therefore has an interest in the ability of the Statesto establish procedures for resolving employment-related claims arisingunder state law.

STATEMENT

1. The Federal Arbitration Act was enacted into law in 1925. Act of Feb.12, 1925, ch. 213, 43 Stat. 883. Its basic coverage provision provides thatit applies to "[a] written provision in any maritime transaction ora contract evidencing a transaction involving commerce to settle by arbitrationa controversy thereafter arising out of such contract or transaction."9 U.S.C. 2. The FAA provides that such provisions in covered contracts "shallbe valid, irrevocable, and enforceable, save upon such grounds as existat law or in equity for the revocation of any contract." Ibid. In theexclusion at issue in this case, however, the statute provides that it doesnot 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.

2. Respondent Saint Clair Adams applied for a position with petitionerCircuit City Stores, Inc., in October 1995. J.A. 12-17. Prospective applicantsfor employment with petitioner must sign a "Circuit City Dispute ResolutionAgreement." Ibid. That form requires that employees submit all claimsand disputes to mutually binding arbitration. J.A. 54; see J.A. 12. Theterms of the form specify that it includes "all previously unassertedclaims, disputes or controversies arising out of or relating to [the] applicationor candidacy for employment, employment and/or cessation of employment withCircuit City, * * * includ[ing] claims under federal, state, and local statutoryor common law, such as the Age Discrimination in Employment Act, Title VIIof the Civil Rights Act of 1964, as amended, including the amendments ofthe Civil Rights Act of 1991, the Americans with Disabilities Act, the lawof contract and law of tort." J.A. 13.

Respondent signed the form and was hired to work for petitioner. J.A.54. Respondent left employment with Circuit City in November 1996. J.A.48. On November 26, 1997, respondent filed a state-law civil action in Californiastate court against petitioner and other defendants, alleging discriminationand harassment on the basis of respondent's sexual orientation. J.A. 10,47-48.

Petitioner filed an action in United States District Court for the NorthernDistrict of California seeking to compel arbitration of respondent's claim.J.A. 55. The district court held that the arbitration provision was enforceableunder the FAA, and it therefore granted petitioner's request for an ordercompelling arbitration and staying state court proceedings. J.A. 43-45.

3. The Ninth Circuit reversed. J.A. 53-56. The court of appeals heldthat, because the arbitration agreement "was a condition precedentto [respondent's] employment," it "was an employment contract."J.A. 56. The court had previously held, in Craft v. Campbell Soup Co., 177F.3d 1083, 1094 (1999), that, because of the Section 1 exclusion, "theFAA does not apply to labor or employment contracts." The court thereforeheld the FAA inapplicable in this case. J.A. 56.

SUMMARY OF ARGUMENT

In provisions unchanged since its enactment, the Federal ArbitrationAct covers arbitration provisions in every contract relating to "atransaction involving commerce." 9 U.S.C. 2. It excludes, however,"contracts of employment of seamen, railroad employees, or any otherclass of workers engaged in foreign or interstate commerce." 9 U.S.C.1. This case concerns the scope of the Section 1 exclusion and its relationshipto the Section 2 coverage provision. In particular, it presents the questionwhether excluding contracts of "any other class of workers engagedin foreign or interstate commerce" excludes all employment contractsthat would have otherwise been brought within the FAA by the Section 2 coverageprovision. That question can be answered in two steps.

First, the terms immediately at issue-"involving commerce"in the Section 2 coverage provision and "engaged in * * * commerce"in the Section 1 exclusion-are coextensive. Standard dictionary definitionsavailable to Congress in 1925 (like those of today) defined each of thecrucial terms-"involved" and "engaged"-in terms of theother. Decisions of this Court made clear that the "engaged in * ** commerce" formulation indicated an intent to go as far as Congressthought it could in the exclusion, just as this Court has held Congresswent to the far reaches of its Commerce Clause authority when it used the"involving commerce" language of the Section 2 coverage provision.

Indeed, the precise language of the Section 1 exclusion was proposedto Congress by a distinguished witness (then-Secretary of Commerce HerbertHoover), and a similarly worded provision was proposed by the chairman ofthe ABA committee that had originally drafted it. Each of them made clearthat this or similar language should be added, in Hoover's words, "[i]fobjection appears to the inclusion of workers' contracts in the law's scheme."Hearing on S. 4213 and S. 4214 Before a Subcomm. of the Senate Comm. onthe Judiciary, 67th Cong., 4th Sess. 14 (1923). Therefore, each of them,as well as the Congress that accepted their proposal, believed that theterms of the Section 1 exclusion were sufficient to remove employment contractsfrom the ambit of the Section 2 "involving commerce" formulation.Petitioner's contention that "involving commerce" and "engagedin * * * commerce" had different meanings at the time Congress draftedthe FAA-a contention on which petitioner rests its argument-has no foundation.

Second, no principle of statutory construction provides a basis to departfrom Congress's intent, as expressed in the plain words of Section 1 ofthe FAA, to exclude employment contracts from the statute's reach. Petitionerinvokes the canon of ejusdem generis to limit the meaning of "seamen,railroad employees, or any other class of workers engaged in foreign orinterstate commerce" to transportation workers, on the ground thatthe two specific categories ("seamen" and "railroad employees")are categories of transportation workers. Though ejusdem generis is usefulwhere a statute is ambiguous, however, the statutory text and congressionalpurpose here are clear. Moreover, there is no reason why Congress wouldhave wanted to limit the FAA exclusion to transportation workers, sincethe same reasons that justify the exclusion of transportation workers (includinglegislative doubts that genuine consent can simply be assumed when the employeesigns a form arbitration agreement offered on a take-it-or-leave-it basis)would apply equally to other workers. Applying ejusdem generis as formulatedby petitioner would oust the States from their traditional authority overemployment relations-a result that this Court should not read into the statutewithout a more express indication of Congress's intent. It would also perverselyattribute to the 1925 Congress that enacted the FAA an intent to subjectto the FAA non-transportation workers (over whom Congress had little constitutionalauthority in 1925), leaving the States with authority over only transportationworkers (over whom the 1925 Congress would have had the clearest constitutionalauthority).

 

ARGUMENT

I. BECAUSE "ENGAGED IN * * * COMMERCE" IN THE SECTION 1 EXCLUSIONAND "INVOLVING COMMERCE" IN THE SECTION 2 COVERAGE PROVISION WEREUNDERSTOOD IN 1925 AS CO-EXTENSIVE, THE ORDINARY MEANING OF THE SECTION1 PHRASE EXCLUDES FROM THE FAA ALL EMPLOYMENT CONTRACTS THAT COULD COMEWITHIN THE FAA UNDER SECTION 2

Sections 1 and 2 of the FAA have remained unchanged since they were enactedin 1925. See 43 Stat. 883. Section 2 is the basic coverage provision ofthe Act. It sets forth the Act's core principle that arbitration provisionsin covered contracts "shall be valid, irrevocable, and enforceable,save upon such grounds as exist at law or in equity for the revocation ofany contract." 9 U.S.C. 2. Section 2 also specifies what the Act covers:"[a] written provision in any maritime transaction or a contract evidencinga transaction involving commerce * * * or an agreement in writing to submitto arbitration an existing controversy arising out of such a contract [or]transaction." Ibid. For purposes of this case, the key language ofSection 2 is that requiring a transaction "involving commerce."

Section 1 of the FAA expressly excludes certain contracts from the ambitof the FAA, providing that "nothing herein contained shall apply tocontracts of employment of seamen, railroad employees, or any other classof workers engaged in foreign or interstate commerce." 9 U.S.C. 1.In Craft v. Campbell Soup Co., supra, the court of appeals held that theSection 1 exclusion, by the use of the terms "contracts of employmentof * * * any other class of workers engaged in foreign or interstate commerce,"excluded all contracts of employment from the FAA. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 n.2 (1991) (reserving that question).The court concluded that all employment contracts that could come withinthe ambit of the FAA by virtue of the "involving commerce" coveragelanguage of Section 2 are excluded as contracts of "workers engagedin * * * commerce" under Section 1. Craft, 177 F.3d at 1094. That conclusionis correct.

A. In 1925 When The FAA Was Enacted, The Terms "Involving Commerce"And "Engaged In Commerce" Were Coextensive

Petitioner rests its argument on the premise that "the § 1exclusion of employment contracts for workers 'engaged in commerce' mustexclude a class of contracts well short of the overall sweep of the statuteas defined by the broader language of § 2." Pet. Br. 16. As amatter of the plain meaning of the words used by Congress when it draftedthe FAA in 1925, that is incorrect. The plain meanings of "involvingcommerce" in Section 2 and "engaged in * * * commerce" inSection 1, as given in general and legal dictionary definitions of the day,were coextensive. Therefore, by excluding "contracts of employmentof * * * workers engaged in * * * commerce" in Section 1, Congressexcluded any employment contract "involving commerce" within themeaning of Section 2.

Absent indications to the contrary, Congress is ordinarily presumed tohave used the ordinary and common meanings of the terms it employs in statutes.Those ordinary meanings, however, are necessarily the meanings of the terms"at the time Congress enacted the statute." Perrin v. United States,444 U.S. 37, 42 (1979). Dictionaries from the period when Congress enactedthe FAA establish that the terms "involved in" and "engagedin" had the same meaning.

The authoritative dictionary of American English at the time Congressenacted the FAA was Webster's New International Dictionary of the EnglishLanguage (1917). Among the definitions provided in that dictionary for "involve"is "[t]o engage thoroughly; to occupy, employ, or absorb." Id.at 1138 (emphasis added). The dictionary thus gave "engage" asone meaning of "involve." Similarly, among the definitions givenin that dictionary for "engage" are "[t]o become involvedor entangled" and "[t]o embark in a business; to take a part;to employ or involve one's self; to devote attention and effort; to enlist;as, to engage in controversy." Id. at 725 (first emphasis added; secondin original). The dictionary thus gave "involve" as one meaningof "engage." See Smallwood v. Jeter, 244 P. 149, 153 (Idaho 1926).Each of the terms "involve" and "engage" was definedin terms of the other.1

Editions of Black's and Bouvier's legal dictionaries from 1910 and 1914do not define "involve" and define only specialized meanings of"engage" not relevant here.2 But in 1933, a few years after theenactment of the FAA, a new edition of Black's Law Dictionary added a definitionof "engage" as "[t]o employ or involve one's self; to takepart in; to embark on." Black's Law Dictionary 661 (3d ed. 1933) (emphasisadded). That confirms the identity of meaning, both in common and legalusage, between the terms "engaged in" and "involved in"at the time the FAA was enacted.

In short, at the time Congress enacted the FAA, the common meanings ofthe term "involving commerce" in the Section 2 coverage provisionand "engaged in * * * commerce" in the Section 1 exclusion werecoextensive. To be sure, the terms were not identical; while abstract entities(such as transactions) could "involve" commerce, only people orbusiness organizations could "engage in" commerce. But althoughthe usage of the two terms varied in this way, their common and ordinarymeaning was identical.3 Accordingly, by excluding "contracts of employmentof * * * workers engaged in * * * commerce" from the FAA, Congressexcluded all contracts of employment "involving commerce" underSection 1 of the FAA.

B. This Court's Cases Establish That Congress Used Both "InvolvingCommerce" And "Engaged In * * * Commerce" To Reach To TheFull Extent Of Its Commerce Clause Power, As Then Understood

1. This Court held in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.265 (1995), that Congress intended the FAA to cover all contracts withinthe scope of its Commerce Clause power when it provided for coverage ofcontracts "involving commerce" in the FAA's Section 2 coverageprovision. The Court explained:

The pre-New Deal Congress that passed the Act in 1925 might well havethought the Commerce Clause did not stretch as far as has turned out tobe the case. But, it is not unusual for this Court in similar circumstancesto ask whether the scope of a statute should expand along with the expansionof the Commerce Clause power itself, and to answer the question affirmatively-as* * * we do here.

Id. at 275. As we show below, the same is true of the "engaged in* * * commerce" language used in Section 1 of the FAA. That languageindicated an intent by Congress to legislate to the full scope of its CommerceClause power over employment. It would be anomalous to adopt an expandinginterpretation of the "involving commerce" language in Section2 of the Act without interpreting the "engaged in * * * commerce"language in Section 1 to have the same flexibility. Indeed, to do so woulddefeat-not effectuate- the intent of Congress that whatever contracts ofemployment were swept within the FAA by Section 2's coverage provision shouldbe excluded by the Section 1 exclusion. See R.A. Epstein, Fidelity WithoutTranslation, 1 Green Bag 2d 21, 27-29 (1997).

2. In 1925, Congress's power to regulate employment relationships hadbeen held by this Court to be severely restricted. Congress described therelatively small number of workers over whom it could exercise its CommerceClause power as "engaged in commerce." Constitutional disputesconcerning the scope of Congress's Commerce Clause power over employmenthad to do with whether Congress could regulate all employees who "engagedin commerce," and neither Congress nor this Court suggested that Congresscould regulate beyond that class. The history of the Federal Employers'Liability Acts provides an illustration.

a. In 1906, Congress first enacted what has become known as the firstFederal Employers' Liability Act (FELA). Act of June 11, 1906, ch. 3073,34 Stat. 232. That Act provided that "every common carrier engagedin trade or commerce * * * between the several States * * * shall be liableto any of its employees" for damages resulting from specified negligentacts. Ibid. (emphasis added). Relying on the "any of its employees"language, this Court held that, even if the employer was generally "engagedin * * * commerce," the Act was unconstitutional because Congress hadthe power to provide a remedy only for employees who were actually engagedin interstate commerce at the time of the injury. As the Court explained,"[t]he act then being addressed to all common carriers engaged in interstatecommerce, and imposing a liability upon them in favor of any of their employees,without qualification or restriction as to the business in which the carriersor their employees may be engaged at the time of the injury, of necessityincludes subjects wholly outside of the power of Congress to regulate commerce."Howard v. Illinois Cent. R.R., 207 U.S. 463, 498 (1908) (emphasis added).The Court explained that among the forbidden "subjects" regulatedby the statute would be a railroad doing interstate and local business "havingshops for repairs, and it may be for construction work, as well as a largeaccounting and clerical force." Id. at 498-499. At the time of Howard,Congress's Commerce Clause power thus did not even extend so far as providinglegal rules generally governing employees working for common carriers whowere "engaged in trade or commerce." Congress took heed of thedecision in Howard and enacted a revised FELA the same year. The revisedstatute, now limited by its terms to railroads, provided that "[e]verycommon carrier by railroad while engaging in commerce between any of theseveral States * * * shall be liable in damages to any person sufferinginjury while he is employed by such carrier in such commerce." 45 U.S.C.51, Act of Apr. 22, 1908, ch. 149, 35 Stat. 65 (emphasis added). The Courtupheld the constitutionality of the revised FELA because, "unlike theone condemned in [Howard], [it] deals only with the liability of a carrierengaged in interstate commerce for injuries sustained by its employees whileengaged in such commerce." Mondou v. New York, New Haven & HartfordR.R., 223 U.S. 1, 51-52 (1912) (emphasis added). Under Howard and Mondou,Congress's Commerce Clause power extended only to employees who were personallyengaged in interstate commerce, and even then only to those employees whilethey were engaged in interstate commerce.

In cases beginning the following year, the Court retreated slightly fromthese principles, so that employees while engaged in work that was inextricablytied to covered employment were also covered. For example, in three casesdecided on May 26, 1913, the Court held that the FELA constitutionally providedcoverage for an iron worker injured while repairing a bridge for an interstaterailroad, Pedersen v. Delaware, Lackawanna & W. R.R., 229 U.S. 146 (1913);a clerk keeping track of railroad cars in a rail yard of an interstate railroad,St. Louis, San Francisco & Tex. Ry. v. Seale, 229 U.S. 156 (1913); anda worker in a rail yard guiding a locomotive through some switches so thatit could be connected to an interstate train, Norfolk & W. Ry. v. Earnest,229 U.S. 114 (1913). Those cases did not alter the principle that Congress'sauthority to regulate employment was limited to employees who were engagedin interstate commerce while they were engaged in such commerce. But theydid slightly expand the meaning of "engaging in commerce," thelinguistic formulation Congress used to express its intent to exercise allof its Commerce Clause power.

b. The following year, in Illinois Central Railroad v. Behrens, 233 U.S.473, 477 (1914), the Court had reached the point where it "entertain[ed]no doubt that the liability of the carrier for injuries suffered by a memberof the crew in the course of its general work was subject to regulationby Congress, whether the particular service being performed at the timeof the injury, isolatedly considered, was in interstate or intrastate commerce."But the Court held in Behrens that the revised FELA nonetheless did notcover a railroad worker injured in a collision as part of a crew that "wasmoving several cars loaded with freight which was wholly intrastate,"even though the same crew frequently moved interstate cars over the sametracks. Id. at 476. Behrens thus held that, although Congress had constitutionalpower to regulate the worker in that case, the revised FELA did not do so.

Petitioner errs in citing Behrens for the proposition that the "engagingin commerce" language in the revised FELA "did not extend to thefull range of Congress' Commerce Clause authority." Pet. Br. 18. TheCourt's decision in Behrens did not turn on whether the employee or employerwere "engaging in commerce." It turned on the temporal qualificationin the revised FELA-the "while" clause. As the Court explained,"[g]iving to the words 'suffering injury while he is employed by suchcarrier in such commerce' their natural meaning, * * * it is clear thatCongress intended to confine its action to injuries occurring when the particularservice in which the employee is engaged is a part of interstate commerce."233 U.S. at 478. See also ibid. ("[T]he true [statutory] test is thenature of the work being done at the time of the injury.") (emphasisadded). Thus, it was the use of the term "while"-not any doubtabout the scope of the "engaging in commerce" language-that limitedthe reach of the revised FELA to less than Congress's full constitutionalpower. Had Congress not included the "while" provision in therevised FELA, the employee would have been covered by the statutory "engagingin commerce" provision.4

In Section 1 of the FAA, Congress did not include any "while"clause or temporal qualification. Accordingly, under Behrens and the othercases cited above, the "engaged in * * * commerce" language inSection 1 extended to the full reach of Congress's power over employment.5

c. In short, at the time Congress enacted the FAA, its Commerce Clauseauthority over employees extended no farther than to those "engagedin commerce."6 Congress therefore used those terms in the FAA's Section1 exclusion to express its intent to cover all of the employees it constitutionallycould. No decision of this Court suggested that Congress's authority overemployees extended beyond the "engaging in commerce" formulation.

The scope of the "engaging in commerce" language did expandgradually over time, as shown by Pedersen, Seale, and Earnest. See also,e.g., Southern Pac. Co. v. Industrial Accident Comm'n, 251 U.S. 259, 262(1920) (FELA applies to lineman repairing electrical line used by interstateand intrastate trains). Congress was surely aware of the decisions expandingthe scope of "engaging in commerce" when it enacted the FAA. Accordingly,by using the "engaged in * * * commerce" formulation in the Section1 exclusion, Congress ensured that the exclusion expanded along with anyexpansions in Congress's Commerce Clause authority. There are no workerswho Congress believed would be covered by the Section 2 coverage provisionbecause their employment contracts "involv[ed] commerce," butwhose work fell outside the "engaged in commerce" exclusion ofSection 1.

d. Petitioner argues (Br. 15) that in cases decided after this Court'srecognition of an expanded congressional Commerce Clause authority in the1930's, the Court construed the term "engaged in commerce" tobe narrower than the full scope of Congress's commerce power. Some of thecases cited construed statutes enacted after the 1930's, by which time theterm "in commerce" had become a term of art. In Russell v. UnitedStates, 471 U.S. 858 (1985), for example, the Court noted, in construingthe federal arson statute enacted in 1970, that "Congress is awareof the distinction between legislation limited to activities 'in commerce'and an assertion of its full Commerce Clause power." Id. at 859 n.4(internal quotation marks omitted). By 1970, Congress was thus aware that"in commerce" denoted something less than Congress's full CommerceClause authority. Nothing in Russell suggests that Congress in 1925 wasaware of that meaning.

Similarly, in McLeod v. Threlkeld, 319 U.S. 491 (1943), the Court construedthe Fair Labor Standards Act provision covering employees satisfying twodistinct standards- "engaged in commerce or in the production of goodsfor commerce." The Court held that "engaged in commerce"in that statute did not extend as far as the Commerce Clause. The Courtrelied on Congress's "deliberate and purposeful" express decisionin 1938 to reject proposed "affecting commerce" language in favorof what by then were known to be the two more specific categories. See id.at 493. Indeed, the Fair Labor Standards Act had been passed in the aftermathof this Court's landmark decision in NLRB v. Jones & Laughlin SteelCorp., 301 U.S. 1 (1937), which first upheld an "affecting commerce"statute and made clear that "affecting commerce" provided a generallypermissible basis for the exercise of the broadest reaches of Congress'sCommerce Clause authority. See also United States v. Darby, 312 U.S. 100,119-123 (1941); cf. A.L.A. Schechter Poultry Corp. v. United States, 295U.S. 495, 544-551 (1935) (denying general "affecting commerce"authority). By that time, as the Court noted in McLeod, "[t]he distinctionin the coverage arising from this choice of language was well known to Congress."319 U.S. at 493 n.2 (citing, inter alia, Jones & Laughlin). McLeod doesnot suggest that a 1925 Congress would have been aware of the distinction.

Other cases cited by petitioner rely on the particular legal contextof the statutory provision at issue. See FTC v. Bunte Bros., 312 U.S. 349,353, 351-352 (1941) (refusing to construe "in commerce" broadly,in reliance on 25-year history of narrow construction by Federal Trade Commissionas "practical construction of the [statute] by those entrusted withits administration"). In United States v. American Building MaintenanceIndustries, 422 U.S. 271 (1975), for example, the Court refused to construethe term "engaged in commerce" in Section 7 of the Clayton Act,15 U.S.C. 18, to cover the whole scope of Congress's Commerce Clause power,based on the need to construe that provision harmoniously with the varyingscope of related federal antitrust provisions. 422 U.S. at 276-279.7 Thesame consideration suggests the need to construe "engaged in * * *commerce" in the Section 1 exclusion harmoniously with "involvingcommerce" in the Section 2 coverage provision. Having construed "involvingcommerce" in the Section 2 coverage provision to expand with Congress'sCommerce Clause authority, the Court should apply the same principle to"engaged in * * * commerce" in the Section 1 exclusion.

The Court also relied in American Building Maintenance on the fact thatSection 7 of the Clayton Act was amended and reenacted in 1950. 422 U.S.at 279-280. Referring to amendments to Section 7 during reenactment andcommittee reports showing that Congress was "fully aware * * * thatboth the original and the newly amended versions of § 7 were limitedto corporations 'engaged in commerce,'" the Court concluded that "thedecision to re-enact § 7 with the same 'in commerce' limitation canbe rationally explained only in terms of a legislative intent, at leastin 1950, not to apply the rather drastic prohibitions of § 7 of theClayton Act to the full range of corporations potentially subject to thecommerce power." 422 U.S. at 281.

Contrary to petitioner's contention (Br. 30), nothing in the processof codifying-but not amending-the FAA in 1947, Act of July 30, 1947, ch.392, § 2, 61 Stat. 670, shows any awareness of limitations in the "engagedin * * * commerce" language in Section 1 of the FAA.8 At the time ofthe codification, Gatliff Coal Co. v. Cox, 142 F.2d 876, 882 (6th Cir. 1944),the only reported appellate decision on the subject, had held that the FAAdid not apply to employment contracts. It was not until six years laterthat the first appellate decision held to the contrary. See Tenney Eng'g,Inc. v. United Elec. Workers, 207 F.2d 450 (3d Cir. 1953). Moreover, whilethe Court in American Building Maintenance was concerned about a "drastic"expansion of the statute there, construing the Section 1 exclusion languageto be as broad as the Section 2 coverage provision would not work any expansionof the FAA. To the contrary, in this case it is petitioner's constructionof "engaged in * * * commerce" in Section 1 that would "drastically"expand the FAA to cover a controversial area-employment contracts -thatCongress had no reason to believe was included in the statute it enactedin 1925.

Finally, the Court has regularly noted in cases construing the "engagedin" language that "[t]ranslation of an implication drawn fromthe special aspects of one statute to a totally different statute is treacherousbusiness." Bunte Bros., 312 U.S. at 353. See also American Bldg. Maint.,422 U.S. at 277 ("The phrase 'in commerce' does not, of course, necessarilyhave a uniform meaning whenever used by Congress."); Gulf Oil Corp.v. Copp Paving Co., 419 U.S. 186, 197 (1974) ("The answer [to the meaningof 'engaged in commerce'] depends on the statutory language, read in lightof its purposes and legislative history."). In the context of the FAA,the construction of "engaged in * * * commerce" in Section 1 shouldnot depend on this Court's construction of other provisions in other statutesenacted in different contexts and with different histories and purposes.Rather, the "engaged in * * * commerce" language of Section 1of the FAA should be construed in the same way that this Court has flexiblyconstrued the cognate "involving commerce" language in Section2, so that Congress's original intent not to include employment contractsin the FAA is preserved.

C. The Record Of The Proceedings Before Congress Establishes That CongressUnderstood The Terms "Involving Commerce" And "Engaged In* * * Commerce" To Be Coextensive

The FAA was originally drafted by a committee of the American Bar Association.See H.R. Rep. No. 96, 68th Cong., 1st Sess. 1 (1924). See generally I.R.Macneil, American Arbitration Law 85-121 (1992) (discussing history of FAA).A bill embodying the ABA's draft was introduced in Congress in December1922. H.R. 13522, 67th Cong., 4th Sess. (1922). It quickly attracted attentionin labor circles, notably that of Andrew Furuseth, President of the InternationalSeamen's Union. See M.W. Finkin, "Workers' Contracts" Under theUnited States Arbitration Act: An Essay In Historical Clarification, 17Berkeley J. Emp. & Lab. L. 282, 284 (1996). The Union and the AmericanFederation of Labor immediately went on record against the bill's applicationto employment contracts, on the ground that the genuine consent to arbitratedisputes that was the backbone of commercial arbitration agreements waslacking when employees sign a take-it-or-leave-it employment contract withan arbitration provision. Ibid. As a union resolution stated, the bill "makesneed, hunger and want, the basis of contracts which * * * a misused equitypower will enforce." Id. at 284 n.14; cf. Volt Info. Sciences, Inc.v. Leland Stanford Jr. Univ., 489 U.S. 468, 479 (1989) ("Arbitrationunder the Act is a matter of consent, not coercion."); Prima PaintCorp. v. Flood & Conklin Mfg., 388 U.S. 395, 403 n.9 (1967) ("Wenote that categories of contracts otherwise within the Arbitration Act butin which one of the parties characteristically has little bargaining powerare expressly excluded from the reach of the Act. See § 1.").

On January 31, 1923, a Senate subcommittee held hearings on the bill.Sales and Contracts to Sell in Interstate and Foreign Commerce, and FederalCommercial Arbitration: Hearing on S. 4213 and S. 4214 Before a Subcomm.of the Senate Comm. on the Judiciary, 67th Cong., 4th Sess. (1923) (SenateHearing). Furuseth's concerns were echoed by Senator Walsh at the hearing:

The trouble about the matter is that a great many of these contractsthat are entered into are really not voluntar[y] things at all. Take aninsurance policy. * * * It is the same with a good many contracts of employment.A man says, "These are our terms. All right, take it or leave it."Well, there is nothing for the man to do except to sign it; and then hesurrenders his right to have his case tried by the court, and has to haveit tried before a tribunal in which he has no confidence at all.

Senate Hearing 9 (emphasis added). Those considering the legislationwere concerned about the questions about consent that would arise upon applicationof the arbitration act to employment contracts.

Having apparently heard of labor's concerns with the bill, then-Secretaryof Commerce Herbert Hoover wrote a letter to the subcommittee supportingthe bill. Hoover's letter is the source of the exclusion in the FAA, andit explains its intended scope. The letter states that "[i]f objectionappears to the inclusion of workers' contracts in the law's scheme, it mightbe well amended by stating 'but nothing herein contained shall apply tocontracts of employment of seamen, railroad employees, or any other classof workers engaged in interstate or foreign commerce.'" Senate Hearing14. Secretary Hoover apparently believed that that language-which was adoptedverbatim into the FAA-would address any objection to "the inclusionof workers' contracts in the law's scheme." There was certainly nosuggestion that it would exclude only some employment contracts, or thatCongress should draft the exclusion narrowly to achieve that end.

Moreover, others shared Hoover's view. The chairman of the ABA committeethat had drafted the legislation, W.H.H. Piatt, also testified before thesubcommittee. In response to the question whether he had heard of objectionsby labor to the bill, he stated:

[Mr. Furuseth] has objected to it, and criticized it on the ground thatthe bill in its present form would affect, in fact compel, arbitration ofthe matters of agreement between the stevedores and their employers. Now,it was not the intention of the bill to have any such effect as that. Itwas not the intention of this bill to make an industrial arbitration inany sense; and so I suggest that in as far as the committee is concerned,if your honorable committee should feel that there is any danger of that,they should add to the bill the following language, "but nothing hereincontained shall apply to seamen or any class of workers in interstate andforeign commerce." It is not intended that this shall be an act referringto labor disputes, at all. It is purely an act to give the merchants theright or the privilege of sitting down and agreeing with each other as towhat their damages are, if they want to do it. Now, that is all there isin this.

Senate Hearing 9. Piatt's suggestion did not include the reference torailroad workers in Hoover's letter, and it substituted for the phrase Hooversuggested ("any other class of workers engaged in interstate or foreigncommerce") a slightly different formulation ("any class of workersin interstate and foreign commerce"). But Piatt's suggestion nonethelessestablishes that Congress was informed that the purpose of the FAA was toaddress commercial disputes among merchants and that a provision excluding"workers in * * * commerce" would eliminate "any danger"that the FAA could be applied to "industrial arbitration" or "labordisputes."

No further action was taken on the FAA until the next Congress. Hearingswere held in 1924 before a joint Senate-House committee on the FAA, as nowamended to include Hoover's Section 1 exclusion. Arbitration of InterstateCommercial Disputes: Joint Hearings on S. 1005 and H.R. 646 Before the Subcomms.of the Comms. on the Judiciary, 68th Cong., 1st Sess. (1924). Although theexclusion was not further addressed in any detail, the basic explanationfor the purpose and language of the exclusion was again made part of therecord. The chairman of the committee submitted Hoover's letter at the hearing,id. at 19, and it therefore was published again as part of the hearing record.Id. at 21. The record of the Joint Hearing is replete with witnesses stressingthe need for legislation to enforce arbitration agreements in commercialtransactions, and no witness or statement suggests that employment contractswould be included. Indeed, with the elimination of employment contracts,"[t]here was no opposition to the bill before the committee."H.R. Rep. No. 96, 68th Cong., 1st Sess. 1 (1924).

This history shows that highly respected and legally sophisticated participantsin the process of drafting and enacting the FAA were concerned that it wouldbe construed to apply to employment contracts, and that they sought a formulationthat would block such coverage. It shows that the "engaged in * * *commerce" formulation that Hoover proposed was presented to and acceptedby Congress as an appropriate way to keep employment contracts out of theambit of the FAA. That is potent evidence that Congress viewed the term"engaged in * * * commerce" in the Section 1 exclusion as sufficientlybroad to eliminate whatever employment contracts might fall within the "involvingcommerce" term in Section 2.

II. THERE IS NO REASON NOT TO CONSTRUE THE TERMS IN THE SECTION 1 EXCLUSIONIN ACCORD WITH THEIR ORDINARY MEANING

As the above discussion demonstrates, the plain meaning of the statutoryterms is that the FAA's Section 1 exclusion for "any other class ofworkers engaged in * * * commerce" is coextensive with the Section2 coverage provision; any employment contracts drawn into the statute bySection 2 are excluded by the plain meaning of that formulation in Section1. Therefore, unless there is some other reason to construe Section 1 morenarrowly than its plain terms indicate, the court of appeals' conclusionthat employment contracts are not covered by the FAA is correct. The "liberalfederal policy favoring arbitration," Moses H. Cone Mem'l Hosp. v.Mercury Constr. Corp., 460 U.S. 1, 24 (1983), does not suffice to narrowSection 1, both because the very question in this case is whether Congresswanted to exclude employment contracts from that policy by enacting theSection 1 exclusion and because that policy in any event could not overcomethe plain statutory language and history.9 An examination of petitioner'sother arguments demonstrates that there are in fact no sound bases to departfrom the plain meaning rule in this case.

1. Petitioner contends that Section 1 excludes only employment contractsof transportation workers, see note 2, supra, and that all other employmentcontracts are covered by the FAA. There is, however, a logical flaw in petitioner'sargument. Even if petitioner were correct that "the § 1 exclusionof employment contracts for workers 'engaged in commerce' must exclude aclass of contracts well short of the overall sweep of the statute as definedby the broader language of § 2," Pet. Br. 16, it would not followthat employment contracts of transportation workers would be the class excluded.To the contrary, the accepted modern meaning of "engaged in commerce,"even if narrower than the full sweep of the Commerce Clause, is to referto "persons or activities within the flow of interstate commerce-thepractical, economic continuity in the generation of goods and services forinterstate markets and their transport and distribution to the consumer."Gulf Oil, 419 U.S. at 195; see also United States v. Robertson, 514 U.S.669, 671-672 (1995) (per curiam) (defendant who purchased goods in Californiafor use in Alaska mine, hired workers out of State and brought them to Alaska,and took mine output out of State "engaged in * * * commerce");Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 213 (1959) (employees"engaged in" commerce where they "worked on plans and specifications"for facilities used for commerce). That obviously extends far beyond thoseemployed in the transportation of goods.

Applying that formulation to this case would require affirmance of thejudgment below. Respondent was employed by "a national retailer ofbrand-name consumer electronics and related products," Pet. Br. 4,that "distribut[es] to the consumer." Gulf Oil, 419 U.S. at 195.Respondent is therefore a member of a "class of workers engaged in* * * commerce" under even the modern, post-1938 meaning of that phrase.Accordingly, petitioner's own arguments regarding the meaning of "engagedin * * * commerce," even if correct, would dictate that respondent-whois not a transportation worker-is within the Section 1 exclusion.

2. Petitioner's argument thus reduces simply to the proposition thatthe maxim of ejusdem generis should be applied to limit the formulation"seamen, railroad employees, or any other class of workers" totransportation workers. For the reasons given above, the concluding phrase("engaged in foreign or interstate commerce") provides no supportfor the application of ejusdem generis here or the limitation of the exclusionto transportation workers. If ejusdem generis is to be applied, it mustbe for other reasons.

a. There is no sound reason for applying the maxim in this case. As thisCourt has explained, "[t]he rule of ejusdem generis * * * is only aninstrumentality for ascertaining the correct meaning of words when thereis uncertainty" and it does "not require rejection of that senseof the words which best harmonizes with the context and the end in view."United States v. Powell, 423 U.S. 87, 91 (1975) (quoting Gooch v. UnitedStates, 297 U.S. 124, 128 (1936)). "That a word may be known by thecompany it keeps is * * * not an invariable rule, for the word may havea character of its own not to be submerged by its association." RussellMotor Car Co. v. United States, 261 U.S. 514, 519 (1923). Like other similarmaxims, ejusdem generis "may not be used to create but only to removedoubt." Ibid. See also Powell, 423 U.S. at 90 ("[W]e would bejustified in narrowing the statute only if such a narrow reading was supportedby evidence of congressional intent over and above the language of the statute.").

As explained above, there is no ambiguity in the Section 1 language-"seamen,railroad employees, or any other class of workers engaged in * * * commerce"-towhich petitioner would apply ejusdem generis. Under that language, "[t]heArbitration Act does not apply to 'contracts of employment of . . . workersengaged in foreign or interstate commerce,'" United Paperworkers Int'lUnion v. Misco, Inc., 484 U.S. 29, 40 n.9 (1987) (ellipsis in original).The analysis thus need go no farther.

Indeed, this Court has held that it is "inappropriate to apply therule of ejusdem generis" to quite similar "expansive" language.Harrison v. PPG Indus., Inc., 446 U.S. 578, 589 (1980). In Harrison, theCourt was asked to apply ejusdem generis to limit the term "any otherfinal action," as it appeared in an extensive list of administrativeorders in Section 307(b)(1) of the Clean Air Act, 42 U.S.C. 7607(b)(1).After stating that it "discern[ed] no uncertainty in the meaning"of the language at issue, the Court held that "the phrase 'any otherfinal action' in the absence of legislative history to the contrary, mustbe construed to mean exactly what it says, namely, any other final action."446 U.S. at 588-589. The same principle applies here. See also Garcia v.United States, 469 U.S. 70, 73-75 (1984) (declining to apply ejusdem generisto construe "any money or other property" to refer only to postalmoney or property in phrase "any mail matter or * * * any money orother property of the United States").10

b. At the very least, application of ejusdem generis requires the articulationof a persuasive reason why Congress would have wanted to achieve the narrowingresult that application of the maxim would achieve; ordinarily, the reasonis that a broad reading of a statutory phrase would "giv[e] unintendedbreadth to the Acts of Congress." Jarecki v. G.D. Searle & Co.,367 U.S. 303, 307 (1961).11 See also Hughey v. United States, 495 U.S. 411,420 (1990) (applying ejusdem generis to avoid result that a "catchallphrase imports into the * * * provisions a wholly new substantive dimensionnot otherwise evident in the statute"); Third Nat'l Bank v. Impac Ltd.,Inc., 432 U.S. 312, 322-323 (1977) (noting numerous reasons, including noscitura sociis, for adopting narrowing construction of statutory term and notingthat "[n]o reason has been advanced" why Congress would have intendedthe broader reading of the statute).

In Powell, for example, the Court declined an invitation to limit thephrase "[p]istols, revolvers, and other firearms capable of being concealedon the person" in a criminal statute to exclude weapons not inherentlyconcealable, such as a sawed-off shotgun. 423 U.S. at 89 n.3. The Courtfound that the statutory purpose-"to make it more difficult for criminalsto obtain concealable weapons," id. at 91-suggests the broader, notnarrower, reading. In Norfolk & Western Railway v. American Train Dispatchers'Ass'n, 499 U.S. 117, 129 (1991), the Court explained that the canon "doesnot control * * * when the whole context dictates a different conclusion."On that basis and after an examination of the legal context and purposeof the statute in question, the Court declined to apply ejusdem generisand held instead that an exemption "from the antitrust laws and allother law, including State and municipal law" includes "a carrier'slegal obligations under a collective-bargaining agreement." Id. at127.12

In this case, applying ejusdem generis to limit the FAA Section 1 exclusionto employment contracts of transportation workers would achieve no discerniblepurpose other than to frustrate Congress's evident intent. The reasons advancedfor the exclusion when it was drafted and added to the statute-in particular,the doubt about the integrity of an employee's consent to an arbitrationclause likely imposed on a take-it-or-leave-it basis in an employment contract-are at least as applicable to other classes of workers as to transportationworkers. Cf. Prima Paint, 388 U.S. at 403 n.9. Although it has been urgedthat an exclusion for transportation workers could be justified on the groundthat statutes already in existence in 1925 provided for arbitration of atleast some disputes of seaman and railroad workers, see Tenney Eng'g, Inc.,207 F.2d at 452, that justification cannot explain the inclusion of othertransportation workers, such as those working in the bus, truck, or eventhe nascent air transit industries. See M. Finkin, supra, 17 Berkeley J.Emp. & Lab. L. at 291 n.40 (noting that in 1926 there were 25,000 trucksand more than 3000 buses operating in interstate commerce); cf. Buck v.Kuykendall, 267 U.S. 307 (1925) (claim by operator of interstate bus lineto be relieved of state-law requirement).

Indeed, petitioner has a difficult time formulating a rationale for atransportation-worker-only exclusion. Petitioner notes (Br. 27) the theoriesthat Congress simply "'rounded out' the exclusionary clause to coversimilar transportation workers" after including seamen and railroadworkers and that Congress "anticipated that other transportation workers* * * also would unionize and lobby successfully for protective legislation."Petitioner concludes (ibid.), however, that "[j]ust as likely, theseadditional groups of transportation workers were included simply to avoidany appearance of favoritism for selected 'special interests.'" The"rounding out" and "avoiding favoritism" theories, however,are not explanations for a transportation-worker-only exclusion; they areacknowledgements of the lack of any good reason why Congress would havewanted to write a statute that would be interpreted as petitioner suggests.Although Congress no doubt sometimes acts in that way, there is no reasonto presume that it has, when the alternative explanation that Congress intendedto exclude all employment contracts is both logically sound and well supportedby the statutory language and the legislative record.

c. Finally, petitioner's expansion of the FAA to include most employmentcontracts would be particularly unwarranted, because it would oust the Statesfrom a part of their traditional authority over the employer-employee relationship.See Southland Corp. v. Keating, 465 U.S. 1 (1984). The States are well-equippedto adopt nuanced approaches, tailored to local settings and inclinations,to perceived abuses -as well as advantages-that might arise from enforcementof arbitration agreements in the employment setting.13 If there is any doubtthat Congress intended generally to exclude employment contracts from theFAA, it would be inappropriate to apply ejusdem generis to expand the reachof the statute that far into what has been state territory. The better coursewould be to adopt a cautious interpretation of the FAA, leaving the Stateswith their traditional authority over the employment relationship untilCongress has more clearly expressed its intent to do otherwise.

Consideration of the relationship between the States and Congress atthe time of the enactment of the FAA in 1925 demonstrates just how odd itwould have been for Congress to have excluded all (and only) transportationworkers from the FAA. Transportation workers were perhaps the only classof workers over whom Congress had reasonably secure Commerce Clause jurisdictionin 1925. To construe the statute as petitioner suggests would be to assumethat Congress wanted to exclude from federal jurisdiction (and thus leaveto the States) employment contracts of workers over whom it clearly hadsubstantial regulatory authority, while bringing within the scope of federallaw (and thus depriving the States of jurisdiction over) employment contractsof workers over whom it likely had no authority. This Court has appliedejusdem generis to avoid a perverse result; it has never applied that orother maxims to put in place a scheme as unusual as that suggested by petitioner.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

 

SETH P. WAXMAN
Solicitor General
BARBARA D. UNDERWOOD
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor
General
Department of Justice

HENRY L. SOLANO
Solicitor
Department of Labor
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Associate General Counsel
ROBERT J. GREGORY
Senior Attorney
Equal Employment
Opportunity Commission

SEPTEMBER 2000

 

1 Modern dictionaries similarly define the two terms in part in termsof each other. See Webster's Third New Int'l Dictionary 751 (1976) (defining"engage" as "to employ or involve oneself"), 1191 (defining"involve" as "to draw in as a participant: engage, employ").

2 Both dictionaries define "engagement" to mean "[i]nFrench law" "[a] contract" or "[t]he obligation arisingfrom a quasi contract" and also to refer in our own law to non-bindingpromises by married women. Black's Law Dictionary 425 (2d ed. 1910); 1 Bouvier'sLaw Dictionary 1040 (3d rev. 1914). Bouvier's also defines "engaged"to mean "[w]ithin the meaning of a bylaw of a fraternal order, oneis engaged in the sale of liquor who is a partner in the saloon business,though he performs no labor in or about the saloon and takes no active partin the business." Ibid.

3 Petitioner's brief, apparently unwittingly, testifies to the modernequivalence of the two terms in its descriptions of the workers coveredunder his view of the statute. See Pet. Br. 8 ("workers who are actuallyengaged in the movement of goods"), 22 (workers "engaged in actualtransportation"), 22 (workers "engaged in the actual interstatetransportation of goods"), 22 ("workers actually involved in theinterstate transportation of goods"), 23 (workers with "directinvolvement in the interstate transportation of goods"), 25 n.12 (workers"directly engaged in transport of goods") (emphases added in eachquotation).

4 The Court resolved any tension between its decision in Behrens andits decision in Howard by explaining that the defect in the first FELA wasnot that it included some employees who were not transporting items in commerceat the time of the accident, but that Congress had "attempted to regulatethe liability of every carrier in interstate commerce * * * for any injuryto any employee, even though his employment had no connection whatever withinterstate commerce." 233 U.S. at 477.

5 Petitioner makes a similar error in relying on Shanks v. Delaware,Lackawanna & Western Railroad, 239 U.S. 556, 558 (1916). In that case,the Court stated the test for coverage under the revised FELA as: "[W]asthe employee at the time of the injury, engaged in interstate transportationor in work so closely related to it as to be practically a part of it?"Petitioner asserts (Br. 18) that the Court thereby construed FELA's "engagingin commerce" language "to identify only a specific subcategoryof workers falling within Congress' Commerce Clause authority." Butthe reason the test under the revised FELA applied only to transportationwas not that the term "engaging in commerce" was so limited. Itwas, instead, the result of the fact that the revised FELA, by its terms,applied only to "every common carrier by railroad." That in noway suggests or supports an inference that the "engaging in commerce"language in the revised FELA-or the similar language in Section 1 of theFAA-was limited to transportation workers.

6 Petitioner is correct (Br. 29) that Congress's Commerce Clause authorityin 1925 was "not limited to 'employees who actually transported peopleor goods in interstate commerce.'" It could surely regulate commoncarriers in non-transportation businesses, such as telegraph and telephonecompanies. See Howard, 207 U.S. at 497. More importantly, Congress couldregulate "the purchase, sale and exchange of commodities" in interstatecommerce, as petitioner states (Br. 29), and business transactions "incident[]to" such activities. See Stafford v. Wallace, 258 U.S. 495, 516 (1922).Congress's Commerce Clause authority over employees and their relationshipto employers, however, was narrower. Hammer v. Dagenhart, 247 U.S. 251,272 (1918) ("The making of goods and the mining of coal are not commerce,nor does the fact that these things are to be afterwards shipped or usedin interstate commerce, make their production a part thereof.").

7 Petitioner cites Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974),as reaching the same narrow construction of "engaged in commerce."Gulf Oil involved three different "engaged in commerce" provisionsin the antitrust laws. One of them was enacted in 1936, and the Court construedit narrowly based on the fact that the legislative record showed that Congresshad deleted an "'effects on commerce' provision, leaving only the 'incommerce' language." Id. at 200. The Court also noted that a broadinterpretation would extend the statute "beyond its clear languageto reach a multitude of local activities that hitherto have been left tostate and local regulation." Id. at 201. Neither of those rationaleswould provide a basis to narrow the scope of the 1925 FAA. The Court didnot resolve the proper construction of the other two provisions at issuein Gulf Oil, see id. at 201-202, although it addressed one of them laterthat Term in American Building Maintenance.

8 See H.R. Rep. No. 255, 80th Cong., 1st Sess. 1 (1947) ("This billtakes each section of title 9 * * * and without any material change enactseach section into positive law. No attempt is made in this bill to makeamendments in existing law."). Of course, because this Court did notconstrue the "involving commerce" language as extending to thefull scope of Congress's Commerce Clause authority until almost 50 yearslater in Allied-Bruce, Congress could not have been aware of the potentialproblem that could be created by broadly construing "involving commerce"in the FAA's Section 2 coverage provision and then narrowly construing "engagedin * * * commerce" in the Section 1 exclusion.

9 Petitioner mistakenly relies (Br. 40) on the provision of the CivilRights Act of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1081, providingthat "[w]here appropriate and to the extent authorized by law, theuse of alternative means of dispute resolution, including settlement negotiations,conciliation, facilitation, mediation, factfinding, minitrials, and arbitration,is encouraged" to resolve federal discrimination cases. See also 42U.S.C. 12212. The EEOC has long taken the position that postdispute agreementsto employ alternative means of dispute resolution, including binding arbitration,should be fostered. The advisability of non-negotiated predispute agreementsto arbitrate as a condition of employment, however, is far more controversial.Accordingly, the statutory provision on which petitioner relies carefully"encourage[s]" arbitration only "[w]here appropriate."See Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 82 n.2 (1998); seealso H.R. Rep. No. 40, 102d Cong., 1st Sess. Pt. 1, at 97, 104 (1991) (inadvisabilityof enforcing predispute agreements); H.R. Rep. No. 40, 102d Cong., 1st Sess.Pt. 2, at 41 (1991) (predispute agreement in employment contract does notpreclude Title VII claim in court). That provision does not-and could not-carryany weight in determining the scope of the FAA Section 1 exclusion enactedin 1925.

10 Petitioner argues (Br. 22) that construing "any other class ofworkers" according to its plain terms would "simply excise thewords 'seamen' and 'railroad employees' from FAA § 1." Literally,that is not true, for the concluding phrase applies only to "any otherclass of workers." Indeed, the addition of the word "other"is one of the differences between Hoover's formulation (which Congress adopted)and Piatt's formulation (which Congress did not) of the exclusion. In anyevent, this kind of listing, concluding with a broad term that could renderthe other terms superfluous, is ordinarily present in statutes, like thoseat issue in Garcia and Powell, to which the Court refuses to apply ejusdemgeneris.

11 For example, in Gustafson v. Alloyd Co., 513 U.S. 561 (1995), theCourt applied the related doctrine of noscitur a sociis in interpretingthe term "communication" in the statutory phrase "any prospectus,notice, circular, advertisement, letter, or communication, written or byradio or television, which offers any security for sale or confirms thesale of any security." 15 U.S.C. 77b(10). The Court explained that"[f]rom the terms 'prospectus, notice, circular, advertisement, [or]letter,' it is apparent that the list refers to documents of wide dissemination."513 U.S. at 575. Accordingly, the Court applied the narrowing maxim to limitthe term "written communication" to "communications heldout to the public at large," id. at 576, based in part on the conclusionthat holding otherwise would "effect[] expansion of the coverage ofthe entire statute," id. at 578. See also ibid. ("It is not plausibleto infer that Congress created this extensive liability for every casualcommunication between buyer and seller in the secondary market.").In this case, it is applying the doctrine of ejusdem generis that wouldsubstantially expand the FAA to include employment contracts; interpretingthe statute according to its terms would permit the legislature (federalor state) to make the difficult policy decisions involved in applying theFAA to employment contracts.

12 See also Gooch, 297 U.S. at 128 (refusing to apply ejusdem generisto limit phrase "for ransom or reward or otherwise" in kidnappingstatute to pecuniary motivations); Helvering v. Stockholms Enskilda Bank,293 U.S. 84, 88-89 (1934) (refusing to exclude interest on tax refunds fromscope of phrase "interest on bonds, notes, or other interest-bearingobligations" in tax statute).

13 Since this case involves only state-law claims, affirmance would notpresent any question regarding the authority of the States to control theforum or forums intended by Congress for resolution of federal statutoryclaims.

APPENDIX

1. Section 1 of Title 9 of the United States Code provides:

§ 1. "Maritime transactions" and "commerce"defined; exceptions to operation of title

"Maritime transactions", as herein defined, means charter parties,bills of lading of water carriers, agreements relating to wharfage, suppliesfurnished vessels or repairs to vessels, collisions, or any other mattersin foreign commerce which, if the subject of controversy, would be embracedwithin admiralty jurisdiction; "commerce", as herein defined,means commerce among the several States or with foreign nations, or in anyTerritory of the United States or in the District of Columbia, or betweenany such Territory and another, or between any such Territory and any Stateor foreign nation, or between the District of Columbia and any State orTerritory or foreign nation, but nothing herein contained shall apply tocontracts of employment of seamen, railroad employees, or any other classof workers engaged in foreign or interstate commerce.

2. Section 2 of Title 9 of the United States Code provides:

§ 2. Validity, irrevocability, and enforcement of agreements toarbitrate

A written provision in any maritime transaction or a contract evidencinga transaction involving commerce to settle by arbitration a controversythereafter arising out of such contract or transaction, or the refusal toperform the whole or any part thereof, or an agreement in writing to submitto arbitration an existing controversy arising out of such a contract, transaction,or refusal, shall be valid, irrevocable, and enforceable, save upon suchgrounds as exist at law or in equity for the revocation of any contract.

 

1 Modern dictionaries similarly define the two terms in part in termsof each other. See Webster's Third New Int'l Dictionary 751 (1976) (defining"engage" as "to employ or involve oneself"), 1191 (defining"involve" as "to draw in as a participant: engage, employ").

2 Both dictionaries define "engagement" to mean "[i]nFrench law" "[a] contract" or "[t]he obligation arisingfrom a quasi contract" and also to refer in our own law to non-bindingpromises by married women. Black's Law Dictionary 425 (2d ed. 1910); 1 Bouvier'sLaw Dictionary 1040 (3d rev. 1914). Bouvier's also defines "engaged"to mean "[w]ithin the meaning of a bylaw of a fraternal order, oneis engaged in the sale of liquor who is a partner in the saloon business,though he performs no labor in or about the saloon and takes no active partin the business." Ibid.

3 Petitioner's brief, apparently unwittingly, testifies to the modernequivalence of the two terms in its descriptions of the workers coveredunder his view of the statute. See Pet. Br. 8 ("workers who are actuallyengaged in the movement of goods"), 22 (workers "engaged in actualtransportation"), 22 (workers "engaged in the actual interstatetransportation of goods"), 22 ("workers actually involved in theinterstate transportation of goods"), 23 (workers with "directinvolvement in the interstate transportation of goods"), 25 n.12 (workers"directly engaged in transport of goods") (emphases added in eachquotation).

4 The Court resolved any tension between its decision in Behrens andits decision in Howard by explaining that the defect in the first FELA wasnot that it included some employees who were not transporting items in commerceat the time of the accident, but that Congress had "attempted to regulatethe liability of every carrier in interstate commerce * * * for any injuryto any employee, even though his employment had no connection whatever withinterstate commerce." 233 U.S. at 477.

5 Petitioner makes a similar error in relying on Shanks v. Delaware,Lackawanna & Western Railroad, 239 U.S. 556, 558 (1916). In that case,the Court stated the test for coverage under the revised FELA as: "[W]asthe employee at the time of the injury, engaged in interstate transportationor in work so closely related to it as to be practically a part of it?"Petitioner asserts (Br. 18) that the Court thereby construed FELA's "engagingin commerce" language "to identify only a specific subcategoryof workers falling within Congress' Commerce Clause authority." Butthe reason the test under the revised FELA applied only to transportationwas not that the term "engaging in commerce" was so limited. Itwas, instead, the result of the fact that the revised FELA, by its terms,applied only to "every common carrier by railroad." That in noway suggests or supports an inference that the "engaging in commerce"language in the revised FELA-or the similar language in Section 1 of theFAA-was limited to transportation workers.

6 Petitioner is correct (Br. 29) that Congress's Commerce Clause authorityin 1925 was "not limited to 'employees who actually transported peopleor goods in interstate commerce.'" It could surely regulate commoncarriers in non-transportation businesses, such as telegraph and telephonecompanies. See Howard, 207 U.S. at 497. More importantly, Congress couldregulate "the purchase, sale and exchange of commodities" in interstatecommerce, as petitioner states (Br. 29), and business transactions "incident[]to" such activities. See Stafford v. Wallace, 258 U.S. 495, 516 (1922).Congress's Commerce Clause authority over employees and their relationshipto employers, however, was narrower. Hammer v. Dagenhart, 247 U.S. 251,272 (1918) ("The making of goods and the mining of coal are not commerce,nor does the fact that these things are to be afterwards shipped or usedin interstate commerce, make their production a part thereof.").

7 Petitioner cites Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974),as reaching the same narrow construction of "engaged in commerce."Gulf Oil involved three different "engaged in commerce" provisionsin the antitrust laws. One of them was enacted in 1936, and the Court construedit narrowly based on the fact that the legislative record showed that Congresshad deleted an "'effects on commerce' provision, leaving only the 'incommerce' language." Id. at 200. The Court also noted that a broadinterpretation would extend the statute "beyond its clear languageto reach a multitude of local activities that hitherto have been left tostate and local regulation." Id. at 201. Neither of those rationaleswould provide a basis to narrow the scope of the 1925 FAA. The Court didnot resolve the proper construction of the other two provisions at issuein Gulf Oil, see id. at 201-202, although it addressed one of them laterthat Term in American Building Maintenance.

8 See H.R. Rep. No. 255, 80th Cong., 1st Sess. 1 (1947) ("This billtakes each section of title 9 * * * and without any material change enactseach section into positive law. No attempt is made in this bill to makeamendments in existing law."). Of course, because this Court did notconstrue the "involving commerce" language as extending to thefull scope of Congress's Commerce Clause authority until almost 50 yearslater in Allied-Bruce, Congress could not have been aware of the potentialproblem that could be created by broadly construing "involving commerce"in the FAA's Section 2 coverage provision and then narrowly construing "engagedin * * * commerce" in the Section 1 exclusion.

9 Petitioner mistakenly relies (Br. 40) on the provision of the CivilRights Act of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1081, providingthat "[w]here appropriate and to the extent authorized by law, theuse of alternative means of dispute resolution, including settlement negotiations,conciliation, facilitation, mediation, factfinding, minitrials, and arbitration,is encouraged" to resolve federal discrimination cases. See also 42U.S.C. 12212. The EEOC has long taken the position that postdispute agreementsto employ alternative means of dispute resolution, including binding arbitration,should be fostered. The advisability of non-negotiated predispute agreementsto arbitrate as a condition of employment, however, is far more controversial.Accordingly, the statutory provision on which petitioner relies carefully"encourage[s]" arbitration only "[w]here appropriate."See Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 82 n.2 (1998); seealso H.R. Rep. No. 40, 102d Cong., 1st Sess. Pt. 1, at 97, 104 (1991) (inadvisabilityof enforcing predispute agreements); H.R. Rep. No. 40, 102d Cong., 1st Sess.Pt. 2, at 41 (1991) (predispute agreement in employment contract does notpreclude Title VII claim in court). That provision does not-and could not-carryany weight in determining the scope of the FAA Section 1 exclusion enactedin 1925.

10 Petitioner argues (Br. 22) that construing "any other class ofworkers" according to its plain terms would "simply excise thewords 'seamen' and 'railroad employees' from FAA § 1." Literally,that is not true, for the concluding phrase applies only to "any otherclass of workers." Indeed, the addition of the word "other"is one of the differences between Hoover's formulation (which Congress adopted)and Piatt's formulation (which Congress did not) of the exclusion. In anyevent, this kind of listing, concluding with a broad term that could renderthe other terms superfluous, is ordinarily present in statutes, like thoseat issue in Garcia and Powell, to which the Court refuses to apply ejusdemgeneris.

11 For example, in Gustafson v. Alloyd Co., 513 U.S. 561 (1995), theCourt applied the related doctrine of noscitur a sociis in interpretingthe term "communication" in the statutory phrase "any prospectus,notice, circular, advertisement, letter, or communication, written or byradio or television, which offers any security for sale or confirms thesale of any security." 15 U.S.C. 77b(10). The Court explained that"[f]rom the terms 'prospectus, notice, circular, advertisement, [or]letter,' it is apparent that the list refers to documents of wide dissemination."513 U.S. at 575. Accordingly, the Court applied the narrowing maxim to limitthe term "written communication" to "communications heldout to the public at large," id. at 576, based in part on the conclusionthat holding otherwise would "effect[] expansion of the coverage ofthe entire statute," id. at 578. See also ibid. ("It is not plausibleto infer that Congress created this extensive liability for every casualcommunication between buyer and seller in the secondary market.").In this case, it is applying the doctrine of ejusdem generis that wouldsubstantially expand the FAA to include employment contracts; interpretingthe statute according to its terms would permit the legislature (federalor state) to make the difficult policy decisions involved in applying theFAA to employment contracts.

12 See also Gooch, 297 U.S. at 128 (refusing to apply ejusdem generisto limit phrase "for ransom or reward or otherwise" in kidnappingstatute to pecuniary motivations); Helvering v. Stockholms Enskilda Bank,293 U.S. 84, 88-89 (1934) (refusing to exclude interest on tax refunds fromscope of phrase "interest on bonds, notes, or other interest-bearingobligations" in tax statute).

13 Since this case involves only state-law claims, affirmance would notpresent any question regarding the authority of the States to control theforum or forums intended by Congress for resolution of federal statutoryclaims.

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