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 

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 
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 

QUESTION PRESENTED 

Whether the Federal Arbitration Act applies to contracts 
of employment. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement......................................................................................... 2 

Summary of argument .................................................................. 

3 

Argument: 

I. Because “engaged in * * * commerce” in the 
Section 1 exclusion and “involving commerce” 

in the Section 2 coverage provision were 
understood in 1925 as coextensive, the ordinary 
meaning of the Section 1 phrase excludes from 

the FAA all employment contracts that could 
come within the FAA under Section 2 ........................ 

6 
A. In 1925 when the FAA was enacted, the 

terms “involving commerce” and “engaged 
in commerce” were coextensive ......................... 

7 
B. This court’s cases establish that Congress 

used both “involving commerce” and 
engaged in * * * commerce” to reach 
to the full extent of its Commerce Clause 

power, as then understood ................................... 

9 

C. The record of the proceedings before Con- 
gress establishes that Congress understood 

the terms “involving commerce” and 
“engaged in * * * commerce” to be co- 
extensive ............................................................... 19 

II. There is no reason not to construe the terms in 
the Section 1 exclusion in accord with their 
ordinary meaning ............................................................ 
23 

Conclusion ....................................................................................... 30 

Appendix ......................................................................................... 1a 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

A.L.A. Schechter Poultry Corp. v. United States, 
295 U.S. 495 (1935) ................................................................ 
16 

Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 
265 (1995) ................................................................................. 
9, 10 

Buck v. Kuykendall, 267 U.S. 307 (1925) .......................... 
29 

Craft v. Campbell Soup Co., 177 F.3d 1083 
(9th Cir. 1999) ......................................................................... 
3, 6, 7 

FTC v. Bunte Bros., 312 U.S. 349 (1941) ........................... 
16, 18 

Garcia v. United States, 469 U.S. 70 (1984) ...................... 
26 

Gatliff Coal Co. v. Cox, 142 F.2d 876 (6th Cir. 
1944) ......................................................................................... 18 

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 
20 (1991) ................................................................................... 

6 

Gooch v. United States, 297 U.S. 124 (1936) ..................... 
25, 28 

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

16, 17, 18, 24, 25 

Gustafson v. Alloyd Co., 513 U.S. 561 (1995) ................... 
27 

Hammer v. Dagenhart, 247 U.S. 251 (1918) ..................... 
14 

Harrison v. PPG Indus., Inc., 446 U.S. 578 
(1980) ........................................................................................ 26 

Helvering v. Stockholms Enskilda Bank, 293 U.S. 
84 (1934) ................................................................................... 

28 

Howard v. Illinois Cent. R.R., 207 U.S. 463 
(1908) ........................................................................................ 
11, 14 

Hughey v. United States, 495 U.S. 411 (1990) .................. 
27 

Illinois Cent. R.R. v. Behrens, 233 U.S. 473 
(1914) ........................................................................................ 
12, 13 

Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961) ........... 
27 

McLeod v. Threlkeld, 319 U.S. 491 (1943) ......................... 
15, 16 

Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 
207 (1959) ................................................................................. 
24 

Mondou v. New York, New Haven & Hartford R.R., 
223 U.S. 1 (1912) ..................................................................... 11 

V 

Cases—Continued: Page 

Moses H. Cone Mem’l Hosp. v. Mercury Constr. 

Corp., 469 U.S. 1 (1983) ....................................................... 
23 

New York Gaslight Club, Inc. v. Carey, 447 U.S. 
54 (1980) ................................................................................... 
2 

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 
1 (1937) ..................................................................................... 
16 

Norfolk & W. Ry. v. American Train Dispatchers’ 

Ass’n, 499 U.S. 117 (1991) ................................................... 

28 

Norfolk & W. Ry. v. Earnest, 229 U.S. 114 (1913) ........... 
12 

Pedersen v. Delaware, Lackawanna & W. R.R., 
229 U.S. 146 (1913) ................................................................ 
12 

Perrin v. United States, 444 U.S. 37 (1979) ...................... 
7 

Prima Paint Corp. v. Flood & Conklin Mfg., 338 

U.S. 395 (1967) ........................................................................ 

19, 28 

Russell v. United States, 471 U.S. 858 (1985) .................. 
15 

Russell Motor Car Co. v. United States, 261 U.S. 
514 (1923) ................................................................................. 
25 

Shanks v. Delaware, Lackawanna & W. R.R., 
239 U.S. 556 (1916) ................................................................ 
13 

Smallwood v. Jeter, 244 P. 149 (Idaho 1926) .................... 
8 

Southland Corp. v. Keating, 465 U.S. 1 (1984) ................. 
29 

Southern Pac. Co. v. Industrial Accident Comm’n, 
251 U.S. 259 (1920) ................................................................ 
14 

St. Louis, San Francisco & Tex. Ry. v. Seale, 229 

U.S. 156 (1913) ........................................................................ 

12 

Stafford v. Wallace, 258 U.S. 495 (1922) ............................ 
14 

Tenney Eng’g Inc. v. United Elec. Workers, 
207 F.2d 450 (3d Cir. 1953) ................................................... 
18, 28 

Third Nat’l Bank v. Impac Ltd., Inc., 432 U.S. 
312 (1977) ................................................................................. 
27 

United Paperworkers Int’l Union v. Misco, Inc., 
484 U.S. 29 (1987) ................................................................... 
26 

United States v. American Bldg. Maint. Indus., 
422 U.S. 271 (1975) ...................................................... 
16, 17, 18 

United States v. Darby, 312 U.S. 100 (1941) ...................... 
16 

United States v. Powell, 423 U.S. 87 (1975) ...................... 25, 28 

VI 

Cases—Continued: Page 

United States v. Robertson, 514 U.S. 669 (1995) .............. 
24 

Volt Info. Sciences, Inc. v. Leland Standford Jr. 

Univ., 489 U.S. 468 (1989) ................................................... 

19 

Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 
(1998) ........................................................................................ 23 

Constitution and statutes: 

U.S. Const. Art. I, § 8, Cl. 3 (Commerce Clause) .......... 
passim 

Act of June 11, 1906, ch. 3073, 34 Stat. 232 .......................... 
10 

Act of Apr. 22, 1908, ch. 149, 35 Stat. 65 ............................... 
11 

Act of Feb. 12, 1925, ch. 213, 43 Stat. 883 ............................. 
2, 6 

Act of July 30, 1947, ch. 392, § 2, 61 Stat. 670 ...................... 
17 

Civil Rights Act of 1991, Pub. L. No. 102-166, 
§ 118, 105 Stat. 1081 .............................................................. 
23 

Clayton Act § 7, 15 U.S.C. 18 .................................................. 
16, 17 

Clean Air Act § 307(b)(1), 42 U.S.C. 7607(b)(1) ................... 
26 

Federal Arbitration Act, 9 U.S.C. 1 et seq. .......................... 
1 

9 U.S.C. 1 ..................................................................... 
passim 

9 U.S.C. 2 ..................................................................... 
passim 

Federal Employers’ Liability Act, 45 U.S.C. 51 ................. 
11 

15 U.S.C. 77b(10) ...................................................................... 
27 

29 U.S.C. 216 (1994 & Supp. IV 1998) .................................. 
1 

29 U.S.C. 660(c) ........................................................................ 
1 

29 U.S.C. 793-794 (1994 & Supp. IV 1998) .......................... 
1 

29 U.S.C. 2617 (1994 & Supp. IV 1998) ................................ 
1 

29 U.S.C. 2938 (Supp. IV 1998) ............................................. 
1 

30 U.S.C. 815(c) ........................................................................ 
1 

38 U.S.C. 4211-4212 (1994 & Supp. IV 1998) ...................... 
1 

42 U.S.C. 2000d et seq. ............................................................ 
1 

42 U.S.C. 12212 ......................................................................... 
23 

Miscellaneous: 

Arbitration of Interstate Commercial Disputes: Joint 

Hearings on S. 1005 and H.R. 646 Before the 
Subcomms. of the Comms. on the Judiciary, 68th 
Cong., 1st Sess. (1924) .......................................................... 22 

VII 

Miscellaneous—Continued: Page 

Black’s Law Dictionary: 
2d ed. 1910 ............................................................................... 
8 

3d ed. 1933 ............................................................................... 
8 

1 Bouvier’s Law Dictionary (3d rev. 1914) .......................... 
8 

R.A. Epstein, Fidelity Without Translation, 1 Green 

Bag 2d 21 (1977) ..................................................................... 

10 

M.W. Finkin, “Workers’ Contracts” Under the 

United States Arbitration Act: An Essay In 
Historical Clarification, 17 Berkeley J. Emp. & 
Lab. L. 282 (1996) .................................................................. 

19, 29 
H.R. 13522, 67th Cong., 4th Sess. (1922) .............................. 
19 

H.R. Rep. No. 96, 68th Cong., 1st Sess. (1924) .................... 
19, 22 

H.R. Rep. No. 255, 80th Cong., 1st Sess. (1947) .................. 
17 

H.R. Rep. No. 40, 102d Cong., 1st Sess.: 

Pt. 1 (1991) .............................................................................. 

23 

Pt. 2 (1991) .............................................................................. 
23 

I.R. Macneil, American Arbitration Law (1992) ................ 
19 

Sales and Contracts to Sell in Interstate and Foreign 
Commerce, and Federal Commercial Arbitration: 
Hearing on S. 4213 and S. 4214 Before a Subcomm. 
of the Senate Comm. on the Judiciary, 67th Cong., 
4th Sess. (1923) ............................................................... 
4, 20, 21 

Webster’s Third New Int’l Dictionary (1976) ...................... 
8 

Webster’s New Int’l Dictionary of the English 

Language (1917) ..................................................................... 7, 8 

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 Fed- 
eral Arbitration Act (FAA), 9 U.S.C. 1 et seq., as applied to a 
pre-dispute employment contract. Although this case in- 
volves claims of discrimination under state law, the United 
States has a significant interest in its outcome. The scope of 
the exclusion in Section 1 of the FAA for employment con- 
tracts may affect the enforcement of arbitration agreements 
covering claims of employment discrimination under federal 
civil rights statutes. Similarly, this Court’s ruling may affect 
employment discrimination claims brought by the Secretary 
of Labor against federal contractors, see 29 U.S.C. 793-794 
(1994 & Supp. IV 1998); 38 U.S.C. 4211-4212 (1994 & Supp. 
IV 1998), and financial aid recipients, 42 U.S.C. 2000d et seq.; 
29 U.S.C. 2938 (Supp. IV 1998). In addition, this case may 
affect enforcement of anti-retaliation provisions in federal 
statutes designed to protect employees who report public 
health and safety violations, as well as enforcement of vari- 
ous 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, state anti- 

(1) 

2 

discrimination laws play an integral role in the “scheme of 
interrelated and complementary state and federal enforce- 
ment” under federal anti-discrimination statutes. 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 
States to establish procedures for resolving employment- 
related claims arising under 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 that it applies to “[a] written 
provision in any maritime transaction or a contract evidenc- 
ing a transaction involving commerce to settle by arbitration 
a controversy thereafter arising out of such contract or 
transaction.” 9 U.S.C. 2. The FAA provides that such 
provisions in covered contracts “shall be valid, irrevocable, 
and enforceable, save upon such grounds as exist at law or in 
equity for the revocation of any contract.” Ibid. In the 
exclusion at issue in this case, however, the statute provides 
that it does not apply to “contracts of employment of sea- 
men, 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 petitioner Circuit City Stores, Inc., in October 1995. 
J.A. 12-17. Prospective applicants for employment with peti- 
tioner must sign a “Circuit City Dispute Resolution Agree- 
ment.” Ibid. That form requires that employees submit all 
claims and disputes to mutually binding arbitration. J.A. 54; 
see J.A. 12. The terms of the form specify that it includes 
“all previously unasserted claims, disputes or controversies 
arising out of or relating to [the] application or candidacy for 
employment, employment and/or cessation of employment 
with Circuit City, * * * includ[ing] claims under federal, 
state, and local statutory or common law, such as the Age 
Discrimination in Employment Act, Title VII of the Civil 

3 

Rights Act of 1964, as amended, including the amendments 
of the Civil Rights Act of 1991, the Americans with 
Disabilities Act, the law of 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 Cir- 
cuit City in November 1996. J.A. 48. On November 26, 1997, 
respondent filed a state-law civil action in California state 
court against petitioner and other defendants, alleging dis- 
crimination and 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 Northern District of California seeking to compel 
arbitration of respondent’s claim. J.A. 55. The district court 
held that the arbitration provision was enforceable under the 
FAA, and it therefore granted petitioner’s request for an 
order compelling arbitration and staying state court pro- 
ceedings. J.A. 43-45. 

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

SUMMARY OF ARGUMENT 

In provisions unchanged since its enactment, the Federal 
Arbitration Act covers arbitration provisions in every con- 
tract relating to “a transaction involving commerce.” 9 
U.S.C. 2. It excludes, however, “contracts of employment of 
seamen, railroad employees, or any other class 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 relationship to the Section 2 coverage provision. In par- 
ticular, it presents the question whether excluding contracts 

4 

of “any other class of workers engaged in foreign or 
interstate commerce” excludes all employment contracts 
that would have otherwise been brought within the FAA by 
the Section 2 coverage provision. That question can be 
answered in two steps. 

First, the terms immediately at issue—“involving com- 
merce” in the Section 2 coverage provision and “engaged in 

* * * commerce” in the Section 1 exclusion—are coexten- 
sive. Standard dictionary definitions available to Congress 
in 1925 (like those of today) defined each of the crucial 
terms—“involved” and “engaged”—in terms of the other. 
Decisions of this Court made clear that the “engaged in 

* * * commerce” formulation indicated an intent to go as 
far as Congress thought it could in the exclusion, just as this 
Court has held Congress went 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 proposed to Congress by a distinguished witness (then- 
Secretary of Commerce Herbert Hoover), and a similarly 
worded provision was proposed by the chairman of the ABA 
committee that had originally drafted it. Each of them made 
clear that this or similar language should be added, in 
Hoover’s words, “[i]f objection 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. on the 
Judiciary, 67th Cong., 4th Sess. 14 (1923). Therefore, each 
of them, as well as the Congress that accepted their pro- 
posal, believed that the terms of the Section 1 exclusion were 
sufficient to remove employment contracts from the ambit of 
the Section 2 “involving commerce” formulation. Peti- 
tioner’s contention that “involving commerce” and “engaged 
in * * * commerce” had different meanings at the time 
Congress drafted the FAA—a contention on which peti- 
tioner rests its argument—has no foundation. 

5 

Second, no principle of statutory construction provides a 
basis to depart from Congress’s intent, as expressed in the 
plain words of Section 1 of the FAA, to exclude employment 
contracts from the statute’s reach. Petitioner invokes the 
canon of ejusdem generis to limit the meaning of “seamen, 
railroad employees, or any other class of workers engaged in 
foreign or interstate commerce” to transportation workers, 
on the ground that the two specific categories (“seamen” and 
“railroad employees”) are categories of transportation 
workers. Though ejusdem generis is useful where a statute 
is ambiguous, however, the statutory text and congressional 
purpose here are clear. Moreover, there is no reason why 
Congress would have wanted to limit the FAA exclusion to 
transportation workers, since the same reasons that justify 
the exclusion of transportation workers (including legislative 
doubts that genuine consent can simply be assumed when 
the employee signs a form arbitration agreement offered on 
a take-it-or-leave-it basis) would apply equally to other 
workers. Applying ejusdem generis as formulated by peti- 
tioner would oust the States from their traditional authority 
over employment relations—a result that this Court should 
not read into the statute without a more express indication 
of Congress’s intent. It would also perversely attribute to 
the 1925 Congress that enacted the FAA an intent to subject 
to the FAA non-transportation workers (over whom Con- 
gress had little constitutional authority in 1925), leaving the 
States with authority over only transportation workers 
(over whom the 1925 Congress would have had the clearest 
constitutional authority). 

6 

ARGUMENT 

I. BECAUSE “ENGAGED IN * * * COMMERCE” IN 
THE SECTION 1 EXCLUSION AND “INVOLVING 

COMMERCE” IN THE SECTION 2 COVERAGE 
PROVISION WERE UNDERSTOOD IN 1925 AS CO- 
EXTENSIVE, THE ORDINARY MEANING OF THE 

SECTION 1 PHRASE EXCLUDES FROM THE FAA 
ALL EMPLOYMENT CONTRACTS THAT COULD 
COME WITHIN THE FAA UNDER SECTION 2 

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

Section 1 of the FAA expressly excludes certain contracts 
from the ambit of the FAA, providing that “nothing herein 
contained shall apply to contracts of employment of seamen, 
railroad employees, or any other class of workers engaged in 
foreign or interstate commerce.” 9 U.S.C. 1. In Craft v. 
Campbell Soup Co., supra, the court of appeals held that the 
Section 1 exclusion, by the use of the terms “contracts of em- 
ployment of * * * 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 

7 

contracts that could come within the ambit of the FAA by 
virtue of the “involving commerce” coverage language of 
Section 2 are excluded as contracts of “workers engaged in 

* * * commerce” under Section 1. Craft, 177 F.3d at 1094. 
That conclusion is 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 § 1 
exclusion of employment contracts for workers ‘engaged in 
commerce’ must exclude a class of contracts well short of the 
overall sweep of the statute as defined by the broader 
language of § 2.” Pet. Br. 16. As a matter of the plain 
meaning of the words used by Congress when it drafted the 
FAA in 1925, that is incorrect. The plain meanings of 
“involving commerce” in Section 2 and “engaged in * * * 
commerce” in Section 1, as given in general and legal dic- 
tionary definitions of the day, were coextensive. Therefore, 
by excluding “contracts of employment of * * * workers 
engaged in * * * commerce” in Section 1, Congress ex- 
cluded any employment contract “involving commerce” 
within the meaning of Section 2. 

Absent indications to the contrary, Congress is ordinarily 
presumed to have used the ordinary and common meanings 
of the terms it employs in statutes. Those ordinary mean- 
ings, 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 enacted the FAA establish that the terms 
“involved in” and “engaged in” had the same meaning. 

The authoritative dictionary of American English at the 
time Congress enacted the FAA was Webster’s New Inter- 
national Dictionary of the English Language (1917). Among 
the definitions provided in that dictionary for “involve” is 
“[t]o engage thoroughly; to occupy, employ, or absorb.” Id. 

8 

at 1138 (emphasis added). The dictionary thus gave “en- 
gage” as one meaning of “involve.” Similarly, among the 
definitions given in that dictionary for “engage” are “[t]o 
become involved or entangled” and “[t]o embark in a busi- 
ness; 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; second in original). The 
dictionary thus gave “involve” as one meaning of “engage.” 
See Smallwood v. Jeter, 244 P. 149, 153 (Idaho 1926). Each 
of the terms “involve” and “engage” was defined in terms of 
the other.1 

Editions of Black’s and Bouvier’s legal dictionaries from 
1910 and 1914 do not define “involve” and define only special- 
ized meanings of “engage” not relevant here.2 But in 1933, a 
few years after the enactment of the FAA, a new edition of 
Black’s Law Dictionary added a definition of “engage” as 
“[t]o employ or involve one’s self; to take part in; to embark 
on.” Black’s Law Dictionary 661 (3d ed. 1933) (emphasis 
added). That confirms the identity of meaning, both in 
common and legal usage, 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 com- 
mon meanings of the term “involving commerce” in the Sec- 
tion 2 coverage provision and “engaged in * * * commerce” 
in the Section 1 exclusion were coextensive. To be sure, the 

1 Modern dictionaries similarly define the two terms in part in terms 
of each other. See Webster’s Third New Int’l Dictionary 751 (1976) (de- 
fining “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]n French law” 
“[a] contract” or “[t]he obligation arising from a quasi contract” and also 
to refer in our own law to non-binding promises by married women. 
Black’s Law Dictionary 425 (2d ed. 1910); 1 Bouvier’s Law Dictionary 
1040 (3d rev. 1914). Bouvier’s also defines “engaged” to mean “[w]ithin 
the meaning of a bylaw of a fraternal order, one is 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 part in the business.” Ibid. 

9 

terms were not identical; while abstract entities (such as 
transactions) could “involve” commerce, only people or busi- 
ness organizations could “engage in” commerce. But al- 
though the usage of the two terms varied in this way, their 
common and ordinary meaning was identical.3 Accordingly, 
by excluding “contracts of employment of * * * workers 
engaged in * * * commerce” from the FAA, Congress 
excluded all contracts of employment “involving commerce” 
under Section 1 of the FAA. 

B. This Court’s Cases Establish That Congress Used Both 
“Involving Commerce” And “Engaged In * * * 
Commerce” To Reach To The Full 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 within the scope of its Commerce 
Clause power when it provided for coverage of contracts 
“involving commerce” in the FAA’s Section 2 coverage pro- 
vision. The Court explained: 

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

3 Petitioner’s brief, apparently unwittingly, testifies to the modern 
equivalence of the two terms in its descriptions of the workers covered 
under his view of the statute. See Pet. Br. 8 (“workers who are actually 
engaged in the movement of goods”), 22 (workers “engaged in actual trans- 
portation”), 22 (workers “engaged in the actual interstate transportation 
of goods”), 22 (“workers actually involved in the interstate transportation 
of goods”), 23 (workers with “direct involvement in the interstate trans- 
portation of goods”), 25 n.12 (workers “directly engaged in transport of 
goods”) (emphases added in each quotation). 

10 

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 language indicated an intent by Congress to 
legislate to the full scope of its Commerce Clause power over 
employment. It would be anomalous to adopt an expanding 
interpretation of the “involving commerce” language in 
Section 2 of the Act without interpreting the “engaged in 

* * * commerce” language in Section 1 to have the same 
flexibility. Indeed, to do so would defeat—not effectuate— 
the intent of Congress that whatever contracts of employ- 
ment were swept within the FAA by Section 2’s coverage 
provision should be excluded by the Section 1 exclusion. See 
R.A. Epstein, Fidelity Without Translation, 1 Green Bag 2d 
21, 27-29 (1997). 

2. In 1925, Congress’s power to regulate employment 
relationships had been held by this Court to be severely 
restricted. Congress described the relatively small number 
of workers over whom it could exercise its Commerce Clause 
power as “engaged in commerce.” Constitutional disputes 
concerning the scope of Congress’s Commerce Clause power 
over employment had to do with whether Congress could 
regulate all employees who “engaged in commerce,” and 
neither Congress nor this Court suggested that Congress 
could 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 first Federal Employers’ Liability Act 
(FELA). Act of June 11, 1906, ch. 3073, 34 Stat. 232. That 
Act provided that “every common carrier engaged in trade 
or commerce * * * between the several States * * * shall 
be liable to any of its employees” for damages resulting from 
specified negligent acts. Ibid. (emphasis added). Relying on 
the “any of its employees” language, this Court held that, 
even if the employer was generally “engaged in * * * 
commerce,” the Act was unconstitutional because Congress 
had the power to provide a remedy only for employees who 

11 

were actually engaged in interstate commerce at the time of 
the injury. As the Court explained, “[t]he act then being ad- 
dressed to all common carriers engaged in interstate 
commerce, and imposing a liability upon them in favor of any 
of their employees, without qualification or restriction as to 
the business in which the carriers or their employees may be 
engaged at the time of the injury, of necessity includes 
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” regulated by the statute would be a 
railroad doing interstate and local business “having shops for 
repairs, and it may be for construction work, as well as a 
large accounting 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 providing legal rules generally 
governing employees working for common carriers who 
were “engaged in trade or commerce.” 

Congress took heed of the decision in Howard and enacted 
a revised FELA the same year. The revised statute, now 
limited by its terms to railroads, provided that “[e]very com- 
mon carrier by railroad while engaging in commerce be- 
tween 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, Act of 
Apr. 22, 1908, ch. 149, 35 Stat. 65 (emphasis added). The 
Court upheld the constitutionality of the revised FELA 
because, “unlike the one condemned in [Howard], [it] deals 
only with the liability of a carrier engaged in interstate com- 
merce for injuries sustained by its employees while engaged 
in such commerce.” Mondou v. New York, New Haven & 
Hartford R.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 personally 
engaged in interstate commerce, and even then only to those 
employees while they were engaged in interstate commerce. 

12 

In cases beginning the following year, the Court retreated 
slightly from these principles, so that employees while 
engaged in work that was inextricably tied to covered em- 
ployment were also covered. For example, in three cases 
decided on May 26, 1913, the Court held that the FELA 
constitutionally provided coverage for an iron worker 
injured while repairing a bridge for an interstate railroad, 
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); and a worker in a rail yard 
guiding a locomotive through some switches so that it 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’s authority to regulate employment 
was limited to employees who were engaged in interstate 
commerce while they were engaged in such commerce. But 
they did slightly expand the meaning of “engaging in com- 
merce,” the linguistic formulation Congress used to express 
its intent to exercise all of 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 member of the crew in 
the course of its general work was subject to regulation by 
Congress, whether the particular service being performed at 
the time of the injury, isolatedly considered, was in inter- 
state or intrastate commerce.” But the Court held in 
Behrens that the revised FELA nonetheless did not cover a 
railroad worker injured in a collision as part of a crew that 
“was moving several cars loaded with freight which was 
wholly intrastate,” even though the same crew frequently 
moved interstate cars over the same tracks. Id. at 476. 
Behrens thus held that, although Congress had constitu- 
tional power to regulate the worker in that case, the revised 
FELA did not do so. 

13 

Petitioner errs in citing Behrens for the proposition that 
the “engaging in commerce” language in the revised FELA 
“did not extend to the full range of Congress’ Commerce 
Clause authority.” Pet. Br. 18. The Court’s decision in 
Behrens did not turn on whether the employee or employer 
were “engaging in commerce.” It turned on the temporal 
qualification in the revised FELA—the “while” clause. As 
the Court explained, “[g]iving to the words ‘suffering injury 
while he is employed by such carrier in such commerce’ their 
natural meaning, * * * it is clear that Congress intended to 
confine its action to injuries occurring when the particular 
service 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 the nature of the work being done at 
the time of the injury.”) (emphasis added). Thus, it was the 
use of the term “while”—not any doubt about the scope of 
the “engaging in commerce” language—that limited the 
reach of the revised FELA to less than Congress’s full 
constitutional power. Had Congress not included the “while” 
provision in the revised FELA, the employee would have 
been covered by the statutory “engaging in commerce” pro- 
vision.4 

In Section 1 of the FAA, Congress did not include any 
“while” clause or temporal qualification. Accordingly, under 
Behrens and the other cases cited above, the “engaged in 

* * * commerce” language in Section 1 extended to the full 
reach of Congress’s power over employment.5 

4 The Court resolved any tension between its decision in Behrens and 
its decision in Howard by explaining that the defect in the first FELA was 
not that it included some employees who were not transporting items in 
commerce at the time of the accident, but that Congress had “attempted 
to regulate the liability of every carrier in interstate commerce * * * for 
any injury to any employee, even though his employment had no 
connection whatever with interstate 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]as 

14 

c. In short, at the time Congress enacted the FAA, its 
Commerce Clause authority over employees extended no 
farther than to those “engaged in commerce.”6 Congress 
therefore used those terms in the FAA’s Section 1 exclusion 
to express its intent to cover all of the employees it consti- 
tutionally could. No decision of this Court suggested that 
Congress’s authority over employees extended beyond the 
“engaging in commerce” formulation. 

The scope of the “engaging in commerce” language did 
expand gradually 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 interstate and intra- 
state trains). Congress was surely aware of the decisions 

the employee at the time of the injury, engaged in interstate transporta- 
tion or 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 
“engaging in commerce” language “to identify only a specific subcategory 
of workers falling within Congress’ Commerce Clause authority.” But the 
reason the test under the revised FELA applied only to transportation 
was not that the term “engaging in commerce” was so limited. It was, 
instead, the result of the fact that the revised FELA, by its terms, applied 
only to “every common carrier by railroad.” That in no way suggests or 
supports an inference that the “engaging in commerce” language in the 
revised FELA—or the similar language in Section 1 of the FAA—was 
limited to transportation workers. 

6 Petitioner is correct (Br. 29) that Congress’s Commerce Clause 
authority in 1925 was “not limited to ‘employees who actually transported 
people or goods in interstate commerce.’ ” It could surely regulate com- 
mon carriers in non-transportation businesses, such as telegraph and 
telephone companies. See Howard, 207 U.S. at 497. More importantly, 
Congress could regulate “the purchase, sale and exchange of commodities” 
in interstate commerce, as petitioner states (Br. 29), and business transac- 
tions “incident[] to” such activities. See Stafford v. Wallace, 258 U.S. 495, 
516 (1922). Congress’s Commerce Clause authority over employees and 
their relationship to 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 used in interstate commerce, make their production 
a part thereof.”). 

15 

expanding the scope of “engaging in commerce” when it 
enacted the FAA. Accordingly, by using the “engaged in 

* * * commerce” formulation in the Section 1 exclusion, 
Congress ensured that the exclusion expanded along with 
any expansions in Congress’s Commerce Clause authority. 
There are no workers who Congress believed would be cov- 
ered by the Section 2 coverage provision because their em- 
ployment contracts “involv[ed] commerce,” but whose work 
fell outside the “engaged in commerce” exclusion of Section 

1. 

d. Petitioner argues (Br. 15) that in cases decided after 
this Court’s recognition of an expanded congressional Com- 
merce Clause authority in the 1930’s, the Court construed 
the term “engaged in commerce” to be narrower than the 
full scope of Congress’s commerce power. Some of the cases 
cited construed statutes enacted after the 1930’s, by which 
time the term “in commerce” had become a term of art. In 
Russell v. United States, 471 U.S. 858 (1985), for example, 
the Court noted, in construing the federal arson statute 
enacted in 1970, that “Congress is aware of 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 Commerce Clause authority. Nothing in 
Russell suggests that Congress in 1925 was aware of that 
meaning. 

Similarly, in McLeod v. Threlkeld, 319 U.S. 491 (1943), the 
Court construed the Fair Labor Standards Act provision 
covering employees satisfying two distinct standards— 
“engaged in commerce or in the production of goods for 
commerce.” The Court held that “engaged in commerce” in 
that statute did not extend as far as the Commerce Clause. 
The Court relied on Congress’s “deliberate and purposeful” 
express decision in 1938 to reject proposed “affecting com- 
merce” language in favor of what by then were known to be 

16 

the two more specific categories. See id. at 493. Indeed, the 
Fair Labor Standards Act had been passed in the aftermath 
of this Court’s landmark decision in NLRB v. Jones & 
Laughlin Steel Corp., 301 U.S. 1 (1937), which first upheld an 
“affecting commerce” statute and made clear that “affecting 
commerce” provided a generally permissible basis for the 
exercise of the broadest reaches of Congress’s Commerce 
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, 295 U.S. 495, 544-551 (1935) (denying general 
“affecting commerce” authority). By that time, as the Court 
noted in McLeod, “[t]he distinction in 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 does not suggest that a 1925 Congress would have 
been aware of the distinction. 

Other cases cited by petitioner rely on the particular legal 
context of 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 his- 
tory of narrow construction by Federal Trade Commission 
as “practical construction of the [statute] by those entrusted 
with its administration”). In United States v. American 
Building Maintenance Industries, 422 U.S. 271 (1975), for 
example, the Court refused to construe the 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 harmo- 
niously with the varying scope of related federal antitrust 
provisions. 422 U.S. at 276-279.7 The same consideration 

7 Petitioner cites Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 
(1974), as reaching the same narrow construction of “engaged in com- 
merce.” Gulf Oil involved three different “engaged in commerce” 
provisions in the antitrust laws. One of them was enacted in 1936, and the 
Court construed it narrowly based on the fact that the legislative record 
showed that Congress had deleted an “‘effects on commerce’ provision, 

17 

suggests the need to construe “engaged in * * * com- 
merce” in the Section 1 exclusion harmoniously with “involv- 
ing commerce” in the Section 2 coverage provision. Having 
construed “involving commerce” in the Section 2 coverage 
provision to expand with Congress’s Commerce 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 that Section 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 and committee 
reports showing that Congress was “fully aware * * * that 
both the original and the newly amended versions of § 7 
were limited to corporations ‘engaged in commerce,’ ” the 
Court concluded that “the decision to re-enact § 7 with the 
same ‘in commerce’ limitation can be rationally explained 
only in terms of a legislative intent, at least in 1950, not to 
apply the rather drastic prohibitions of § 7 of the Clayton 
Act to the full range of corporations potentially subject to 
the commerce power.” 422 U.S. at 281. 

Contrary to petitioner’s contention (Br. 30), nothing in the 
process of 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 “engaged in * * * com- 
merce” language in Section 1 of the FAA.8 At the time of 

leaving only the ‘in commerce’ language.” Id. at 200. The Court also noted 
that a broad interpretation would extend the statute “beyond its clear 
language to reach a multitude of local activities that hitherto have been 
left to state and local regulation.” Id. at 201. Neither of those rationales 
would provide a basis to narrow the scope of the 1925 FAA. The Court 
did not resolve the proper construction of the other two provisions at issue 
in Gulf Oil, see id. at 201-202, although it addressed one of them later that 
Term in American Building Maintenance. 

8 See H.R. Rep. No. 255, 80th Cong., 1st Sess. 1 (1947) (“This bill takes 
each section of title 9 * * * and without any material change enacts each 
section into positive law. No attempt is made in this bill to make amend- 
ments in existing law.”). Of course, because this Court did not construe 

18 

the 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 FAA did not apply to employment 
contracts. It was not until six years later that 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, while the Court in American Building Mainte- 
nance was concerned about a “drastic” expansion of the 
statute there, construing the Section 1 exclusion language to 
be as broad as the Section 2 coverage provision would not 
work any expansion of the FAA. To the contrary, in this 
case it is petitioner’s construction of “engaged in * * * 
commerce” in Section 1 that would “drastically” expand the 
FAA to cover a controversial area—employment contracts 
—that Congress had no reason to believe was included in the 
statute it enacted in 1925. 

Finally, the Court has regularly noted in cases construing 
the “engaged in” language that “[t]ranslation of an implica- 
tion drawn from the special aspects of one statute to a totally 
different statute is treacherous business.” 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, necessarily 
have a uniform meaning whenever used by Congress.”); Gulf 
Oil Corp. v. Copp Paving Co., 419 U.S. 186, 197 (1974) (“The 
answer [to the meaning of ‘engaged in commerce’] depends 
on the statutory language, read in light of its purposes and 
legislative history.”). In the context of the FAA, the 
construction of “engaged in * * * commerce” in Section 1 
should not depend on this Court’s construction of other 
provisions in other statutes enacted in different contexts and 

the “involving commerce” language as extending to the full scope of Con- 
gress’s Commerce Clause authority until almost 50 years later in Allied- 
Bruce, Congress could not have been aware of the potential problem that 
could be created by broadly construing “involving commerce” in the 
FAA’s Section 2 coverage provision and then narrowly construing 
“engaged in * * * commerce” in the Section 1 exclusion. 

19 

with different histories and purposes. Rather, the “engaged 
in * * * commerce” language of Section 1 of the FAA 
should be construed in the same way that this Court has 
flexibly construed the cognate “involving commerce” 
language in Section 2, so that Congress’s original intent not 
to include employment contracts in the FAA is preserved. 

C. The Record Of The Proceedings Before Congress 

Establishes That Congress Understood 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 Con- 
gress in December 1922. H.R. 13522, 67th Cong., 4th Sess. 
(1922). It quickly attracted attention in labor circles, notably 
that of Andrew Furuseth, President of the International 
Seamen’s Union. See M.W. Finkin, “Workers’ Contracts” 
Under the United States Arbitration Act: An Essay In 
Historical Clarification, 17 Berkeley J. Emp. & Lab. L. 282, 
284 (1996). The Union and the American Federation of 
Labor immediately went on record against the bill’s applica- 
tion to employment contracts, on the ground that the genu- 
ine consent to arbitrate disputes that was the backbone of 
commercial arbitration agreements was lacking when em- 
ployees sign a take-it-or-leave-it employment contract with 
an arbitration provision. Ibid. As a union resolution stated, 
the bill “makes need, hunger and want, the basis of contracts 
which * * * a misused equity power will enforce.” Id. at 
284 n.14; cf. Volt Info. Sciences, Inc. v. Leland Stanford Jr. 
Univ., 489 U.S. 468, 479 (1989) (“Arbitration under the Act is 
a matter of consent, not coercion.”); Prima Paint Corp. v. 
Flood & Conklin Mfg., 388 U.S. 395, 403 n.9 (1967) (“We note 
that categories of contracts otherwise within the Arbitration 

20 

Act but in which one of the parties characteristically has 
little bargaining power are 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 Federal Commercial Arbitration: 
Hearing on S. 4213 and S. 4214 Before a Subcomm. of the 
Senate Comm. on the Judiciary, 67th Cong., 4th Sess. (1923) 
(Senate Hearing). Furuseth’s concerns were echoed by 
Senator Walsh at the hearing: 

The trouble about the matter is that a great many of 
these contracts that are entered into are really not 
voluntar[y] things at all. Take an insurance policy. * * * 
It is the same with a good many contracts of employ- 
ment. 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 he surrenders his right to have 
his case tried by the court, and has to have it tried before 
a tribunal in which he has no confidence at all. 

Senate Hearing 9 (emphasis added). Those considering the 
legislation were concerned about the questions about con- 
sent that would arise upon application of the arbitration act 
to employment contracts. 

Having apparently heard of labor’s concerns with the bill, 
then-Secretary of Commerce Herbert Hoover wrote a letter 
to the subcommittee supporting the bill. Hoover’s letter is 
the source of the exclusion in the FAA, and it explains its 
intended scope. The letter states that “[i]f objection appears 
to the inclusion of workers’ contracts in the law’s scheme, it 
might be well amended by stating ‘but nothing herein 
contained shall apply to contracts of employment of seamen, 
railroad employees, or any other class of workers engaged in 
interstate or foreign commerce.’ ” Senate Hearing 14. Secre- 
tary Hoover apparently believed that that language—which 
was adopted verbatim into the FAA—would address any 

21 

objection to “the inclusion of workers’ contracts in the law’s 
scheme.” There was certainly no suggestion that it would 
exclude only some employment contracts, or that Congress 
should draft the exclusion narrowly to achieve that end. 

Moreover, others shared Hoover’s view. The chairman of 
the ABA committee that had drafted the legislation, W.H.H. 
Piatt, also testified before the subcommittee. In response to 
the question whether he had heard of objections by labor to 
the bill, he stated: 

[Mr. Furuseth] has objected to it, and criticized it on the 
ground that the bill in its present form would affect, in 
fact compel, arbitration of the 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. It was not the intention of this bill to make an 
industrial arbitration in any 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 herein contained shall apply to seamen or any 
class of workers in interstate and foreign commerce.” It 
is not intended that this shall be an act referring to labor 
disputes, at all. It is purely an act to give the merchants 
the right or the privilege of sitting down and agreeing 
with each other as to what their damages are, if they 
want to do it. Now, that is all there is in this. 

Senate Hearing 9. Piatt’s suggestion did not include the ref- 
erence to railroad workers in Hoover’s letter, and it sub- 
stituted for the phrase Hoover suggested (“any other class of 
workers engaged in interstate or foreign commerce”) a 
slightly different formulation (“any class of workers in inter- 
state and foreign commerce”). But Piatt’s suggestion none- 
theless establishes that Congress was informed that the 
purpose of the FAA was to address commercial disputes 
among merchants and that a provision excluding “workers in 

22 

* * * commerce” would eliminate “any danger” that the 
FAA could be applied to “industrial arbitration” or “labor 
disputes.” 
No further action was taken on the FAA until the next 
Congress. Hearings were held in 1924 before a joint Senate- 
House committee on the FAA, as now amended to include 
Hoover’s Section 1 exclusion. Arbitration of Interstate Com- 
mercial 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 the exclusion was not 
further addressed in any detail, the basic explanation for the 
purpose and language of the exclusion was again made part 
of the record. 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 stress- 
ing the need for legislation to enforce arbitration agreements 
in commercial transactions, and no witness or statement 
suggests that employment contracts would be included. In- 
deed, 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 participants in the process of drafting and 
enacting the FAA were concerned that it would be con- 
strued to apply to employment contracts, and that they 
sought a formulation that would block such coverage. It 
shows that the “engaged in * * * commerce” formulation 
that Hoover proposed was presented to and accepted by 
Congress as an appropriate way to keep employment con- 
tracts out of the ambit of the FAA. That is potent evidence 
that Congress viewed the term “engaged in * * * com- 
merce” in the Section 1 exclusion as sufficiently broad to 
eliminate whatever employment contracts might fall within 
the “involving commerce” term in Section 2. 

23 

II. THERE IS NO REASON NOT TO CONSTRUE THE 

TERMS IN THE SECTION 1 EXCLUSION IN 
ACCORD WITH THEIR ORDINARY MEANING 

As the above discussion demonstrates, the plain meaning 
of the statutory terms is that the FAA’s Section 1 exclusion 
for “any other class of workers engaged in * * * com- 
merce” is coextensive with the Section 2 coverage provision; 
any employment contracts drawn into the statute by Section 
2 are excluded by the plain meaning of that formulation in 
Section 1. Therefore, unless there is some other reason to 
construe Section 1 more narrowly than its plain terms 
indicate, the court of appeals’ conclusion that employment 
contracts are not covered by the FAA is correct. The “lib- 
eral federal policy favoring arbitration,” Moses H. Cone 
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), 
does not suffice to narrow Section 1, both because the very 
question in this case is whether Congress wanted to exclude 
employment contracts from that policy by enacting the Sec- 
tion 1 exclusion and because that policy in any event could 
not overcome the plain statutory language and history.9 An 

9 Petitioner mistakenly relies (Br. 40) on the provision of the Civil 
Rights Act of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1081, providing 
that “[w]here appropriate and to the extent authorized by law, the use 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 42 U.S.C. 
12212. The EEOC has long taken the position that postdispute agree- 
ments to employ alternative means of dispute resolution, including binding 
arbitration, should be fostered. The advisability of non-negotiated pre- 
dispute agreements to 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 appro- 
priate.” See Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 82 n.2 
(1998); see also H.R. Rep. No. 40, 102d Cong., 1st Sess. Pt. 1, at 97, 104 
(1991) (inadvisability of enforcing predispute agreements); H.R. Rep. No. 
40, 102d Cong., 1st Sess. Pt. 2, at 41 (1991) (predispute agreement in em- 
ployment contract does not preclude Title VII claim in court). That provi- 

24 

examination of petitioner’s other arguments demonstrates 
that there are in fact no sound bases to depart from the plain 
meaning rule in this case. 

1. Petitioner contends that Section 1 excludes only em- 
ployment contracts of transportation workers, see note 2, 
supra, and that all other employment contracts are covered 
by the FAA. There is, however, a logical flaw in petitioner’s 
argument. Even if petitioner were correct that “the § 1 
exclusion of employment contracts for workers ‘engaged in 
commerce’ must exclude a class of contracts well short of the 
overall sweep of the statute as defined by the broader 
language of § 2,” Pet. Br. 16, it would not follow that employ- 
ment 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 refer to “persons or activities 
within the flow of interstate commerce—the practical, eco- 
nomic continuity in the generation of goods and services for 
interstate 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 California for 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 
those employed in the transportation of goods. 

Applying that formulation to this case would require affir- 
mance of the judgment below. Respondent was employed by 
“a national retailer of brand-name consumer electronics and 
related products,” Pet. Br. 4, that “distribut[es] to the 

sion does not—and could not—carry any weight in determining the scope 
of the FAA Section 1 exclusion enacted in 1925. 

25 

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 “engaged in * * * commerce,” 
even if correct, would dictate that respondent—who is not a 
transportation worker—is within the Section 1 exclusion. 

2. Petitioner’s argument thus reduces simply to the 
proposition that the maxim of ejusdem generis should be 
applied to limit the formulation “seamen, railroad employees, 
or any other class of workers” to transportation workers. 
For the reasons given above, the concluding phrase (“en- 
gaged in foreign or interstate commerce”) provides no sup- 
port for the application of ejusdem generis here or the 
limitation of the exclusion to transportation workers. If 
ejusdem generis is to be applied, it must be for other 
reasons. 

a. There is no sound reason for applying the maxim in 
this case. As this Court has explained, “[t]he rule of ejusdem 
generis * * * is only an instrumentality for ascertaining the 
correct meaning of words when there is uncertainty” and it 
does “not require rejection of that sense of 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. United States, 297 U.S. 124, 128 (1936)). “That a 
word may be known by the company it keeps is * * * not 
an invariable rule, for the word may have a character of its 
own not to be submerged by its association.” Russell Motor 
Car Co. v. United States, 261 U.S. 514, 519 (1923). Like 
other similar maxims, ejusdem generis “may not be used to 
create but only to remove doubt.” Ibid. See also Powell, 423 
U.S. at 90 (“[W]e would be justified in narrowing the statute 
only if such a narrow reading was supported by evidence of 
congressional intent over and above the language of the 
statute.”). 

26 

As explained above, there is no ambiguity in the Section 1 
language—“seamen, railroad employees, or any other class 
of workers engaged in * * * commerce”—to which 
petitioner would apply ejusdem generis. Under that 
language, “[t]he Arbitration Act does not apply to ‘contracts 
of employment of . . . workers engaged in foreign or inter- 
state commerce,’ ” United Paperworkers Int’l Union 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 the rule of ejusdem generis” to quite similar “expan- 
sive” language. Harrison v. PPG Indus., Inc., 446 U.S. 578, 
589 (1980). In Harrison, the Court was asked to apply 
ejusdem generis to limit the term “any other final action,” as 
it appeared in an extensive list of administrative orders 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 other final action’ in the absence of legislative 
history to the contrary, must be 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 generis to construe “any money or other property” 
to refer only to postal money or property in phrase “any mail 
matter or * * * any money or other property of the United 
States”). 

10 

10 Petitioner argues (Br. 22) that construing “any other class of work- 
ers” according to its plain terms would “simply excise the words ‘seamen’ 
and ‘railroad employees’ from FAA § 1.” Literally, that is not true, for the 
concluding phrase applies only to “any other class 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 any event, this kind of list- 
ing, concluding with a broad term that could render the other terms super- 
fluous, is ordinarily present in statutes, like those at issue in Garcia and 

Powell, to which the Court refuses to apply ejusdem generis. 

27 

b. At the very least, application of ejusdem generis re- 
quires the articulation of a persuasive reason why Congress 
would have wanted to achieve the narrowing result that 
application of the maxim would achieve; ordinarily, the 
reason is that a broad reading of a statutory phrase would 
“giv[e] unintended breadth 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 “catchall 
phrase imports into the * * * provisions a wholly new sub- 
stantive dimension not otherwise evident in the statute”); 
Third Nat’l Bank v. Impac Ltd., Inc., 432 U.S. 312, 322-323 
(1977) (noting numerous reasons, including noscitur a sociis, 
for adopting narrowing construction of statutory term and 
noting that “[n]o reason has been advanced” why Congress 
would have intended the broader reading of the statute). 

In Powell, for example, the Court declined an invitation to 
limit the phrase “[p]istols, revolvers, and other firearms ca- 
pable of being concealed on the person” in a criminal statute 
to exclude weapons not inherently concealable, such as a 

11 For example, in Gustafson v. Alloyd Co., 513 U.S. 561 (1995), the 
Court applied the related doctrine of noscitur a sociis in interpreting the 
term “communication” in the statutory phrase “any prospectus, notice, cir- 
cular, advertisement, letter, or communication, written or by radio or 
television, which offers any security for sale or confirms the sale 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. Ac- 
cordingly, the Court applied the narrowing maxim to limit the term 
“written communication” to “communications held out to the public at 
large,” id. at 576, based in part on the conclusion that holding otherwise 
would “effect[] expansion of the coverage of the entire statute,” id. at 578. 
See also ibid. (“It is not plausible to infer that Congress created this 
extensive liability for every casual communication between buyer and 
seller in the secondary market.”). In this case, it is applying the doctrine 
of ejusdem generis that would substantially expand the FAA to include 
employment contracts; interpreting the statute according to its terms 
would permit the legislature (federal or state) to make the difficult policy 
decisions involved in applying the FAA to employment contracts. 

28 

sawed-off shotgun. 423 U.S. at 89 n.3. The Court found that 
the statutory purpose—“to make it more difficult for crimi- 
nals to obtain concealable weapons,” id. at 91—suggests the 
broader, not narrower, reading. In Norfolk & Western Rail- 
way v. American Train Dispatchers’ Ass’n, 499 U.S. 117, 129 
(1991), the Court explained that the canon “does not control 

* * * when the whole context dictates a different conclu- 
sion.” On that basis and after an examination of the legal 
context and purpose of the statute in question, the Court 
declined to apply ejusdem generis and held instead that an 
exemption “from the antitrust laws and all other law, 
including State and municipal law” includes “a carrier’s legal 
obligations under a collective-bargaining agreement.” Id. at 
127. 

12 

In this case, applying ejusdem generis to limit the FAA 
Section 1 exclusion to employment contracts of transporta- 
tion workers would achieve no discernible purpose other 
than to frustrate Congress’s evident intent. The reasons 
advanced for 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 arbitration clause 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 
transportation workers. Cf. Prima Paint, 388 U.S. at 403 

n.9. Although it has been urged that an exclusion for 
transportation workers could be justified on the ground that 
statutes already in existence in 1925 provided for arbitration 
of at least some disputes of seaman and railroad workers, see 
Tenney Eng’g, Inc., 207 F.2d at 452, that justification cannot 
explain the inclusion of other transportation workers, such 

12 See also Gooch, 297 U.S. at 128 (refusing to apply ejusdem generis to 
limit phrase “for ransom or reward or otherwise” in kidnapping statute to 
pecuniary motivations); Helvering v. Stockholms Enskilda Bank, 293 U.S. 
84, 88-89 (1934) (refusing to exclude interest on tax refunds from scope of 
phrase “interest on bonds, notes, or other interest-bearing obligations” in 
tax statute). 

29 

as those working in the bus, truck, or even the 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 trucks and more than 3000 buses operating in inter- 
state commerce); cf. Buck v. Kuykendall, 267 U.S. 307 (1925) 
(claim by operator of interstate bus line to be relieved of 
state-law requirement). 

Indeed, petitioner has a difficult time formulating a ration- 
ale for a transportation-worker-only exclusion. Petitioner 
notes (Br. 27) the theories that Congress simply “ ‘rounded 
out’ the exclusionary clause to cover similar transportation 
workers” after including seamen and railroad workers and 
that Congress “anticipated that other transportation work- 
ers * * * also would unionize and lobby successfully for 
protective legislation.” Petitioner concludes (ibid.), how- 
ever, that “[j]ust as likely, these additional groups of trans- 
portation workers were included simply to avoid any appear- 
ance of favoritism for selected ‘special interests.’ ” 
The 

“rounding out” and “avoiding favoritism” theories, however, 
are not explanations for a transportation-worker-only exclu- 
sion; they are acknowledgements of the lack of any good rea- 
son why Congress would have wanted to write a statute that 
would be interpreted as petitioner suggests. Although Con- 
gress no doubt sometimes acts in that way, there is no rea- 
son to presume that it has, when the alternative explanation 
that Congress intended to exclude all employment contracts 
is both logically sound and well supported by the statutory 
language and the legislative record. 

c. Finally, petitioner’s expansion of the FAA to include 
most employment contracts would be particularly unwar- 
ranted, because it would oust the States from a part of their 
traditional authority over the employer-employee relation- 
ship. See Southland Corp. v. Keating, 465 U.S. 1 (1984). The 
States are well-equipped to adopt nuanced approaches, 
tailored to local settings and inclinations, to perceived abuses 
—as well as advantages—that might arise from enforcement 

30 

13 If 
there is any doubt that Congress intended generally to ex- 
clude employment contracts from the FAA, it would be 
inappropriate to apply ejusdem generis to expand the reach 
of the statute that far into what has been state territory. 
The better course would be to adopt a cautious interpreta- 
tion of the FAA, leaving the States with their traditional 
authority over the employment relationship until Congress 
has more clearly expressed its intent to do otherwise. 

Consideration of the relationship between the States and 
Congress at the time of the enactment of the FAA in 1925 
demonstrates just how odd it would have been for Congress 
to have excluded all (and only) transportation workers from 
the FAA. Transportation workers were perhaps the only 
class of workers over whom Congress had reasonably secure 
Commerce Clause jurisdiction in 1925. To construe the stat- 
ute as petitioner suggests would be to assume that Congress 
wanted to exclude from federal jurisdiction (and thus leave 
to the States) employment contracts of workers over whom 
it clearly had substantial regulatory authority, while bring- 
ing within the scope of federal law (and thus depriving the 
States of jurisdiction over) employment contracts of workers 
over whom it likely had no authority. This Court has applied 
ejusdem generis to avoid a perverse result; it has never 
applied that or other 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. 

13 Since this case involves only state-law claims, affirmance would not 
present any question regarding the authority of the States to control the 
forum or forums intended by Congress for resolution of federal statutory 
claims. 

of arbitration agreements in the employment setting. 

31 

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 
SETH P. WAXMAN 

Solicitor General 
BARBARA D. UNDERWOOD 

Deputy Solicitor General 
JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

SEPTEMBER 2000 

APPENDIX 

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

§ 1. “Maritime transactions” and “commerce” de- 
fined; exceptions to operation of title 

“Maritime transactions”, as herein defined, means charter 
parties, bills of lading of water carriers, agreements relating 
to wharfage, supplies furnished vessels or repairs to vessels, 
collisions, or any other matters in foreign commerce which, if 
the subject of controversy, would be embraced within admi- 
ralty jurisdiction; “commerce”, as herein defined, means 
commerce among the several States or with foreign nations, 
or in any Territory of the United States or in the District of 
Columbia, or between any such Territory and another, or 
between any such Territory and any State or foreign nation, 
or between the District of Columbia and any State or Terri- 
tory or foreign nation, but nothing herein contained shall 
apply to contracts of employment of seamen, railroad em- 
ployees, or any other class of 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 to arbitrate 

A written provision in any maritime transaction or a 
contract evidencing a transaction involving commerce to 
settle by arbitration a controversy thereafter arising out of 
such contract or transaction, or the refusal to perform the 
whole or any part thereof, or an agreement in writing to 
submit to arbitration an existing controversy arising out of 
such a contract, transaction, or refusal, shall be valid, 

(1a) 

2a 

irrevocable, and enforceable, save upon such grounds as 
exist at law or in equity for the revocation of any contract.