This Is One Of Those Rare Cases In Which A Delegation Clause Is Not Enforced.
Generally, a court will decide arbitrability of a dispute unless that issue is clearly and unmistakably delegated to an arbitrator, as was the case here. But there are exceptions, and New Prime Inc. v. Oliveira (S. Ct. 1/15/19) addresses an important exception. (Gorsuch, author, Ginsburg conc.). The case was the subject of an earlier 10/1/18 post.
The wage dispute involved New Prime Inc., an interstate trucking company, and Dominic Oliveira, who works as one of its drivers, and who, for purposes of this appeal, accepted his status as an independent contractor. Section 1 of the Federal Arbitration Act carves out from its coverage "contracts of employment of . . . workers engaged in foreign or interstate commerce." Everyone agreed that Mr. Oliveira was a worker engaged in interstate commerce. But was he, as an independent contractor, covered by a "contract of employment." Yes, explains Justice Gorsuch, because when the FAA was enacted in 1925, employees and independent contractors were covered by contracts of employment. The meaning of the word "employment" has wandered over time, so now, an employee - employer - employment relationship has a meaning distinct from that of an independent contractor relationship. But as a textualist, Justice Gorsuch, quoting from another case, reminds us: "[I]t's a 'fundamental canon of statutory construction' that words generally should be 'interpreted as taking their ordinary . . . meaning . . . at the time congress enacted the statute.'" Wisconsin Central Ltd. v. United States, 585 U.S. __, __ (2018) (slip op., at 9). And the statute's sequencing is important, so the courts get to decide the threshold question of whether the section 1 exclusion applies to remove the arbitration clause from the ambit of the FAA.
COMMENT: This opinion is an interesting exercise in textualism, and as such, involves solving a statutory word puzzle and delving in to mouldy dictionaries. And that's where Justice Ginsburg comes in with her concurrence, agreeing with the proposition in Wisconsin Central Ltd., but taking care to qualify it to acknowledge that Congress may design legislation to govern changing times and circumstances, and that some statutes should be construed flexibly to effectuate remedial purposes. Not really a problem, however, with this specific case, and in fact, Justice Gorsuch writes, "statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included." But here, there is no good reason to depart from the existing meaning of the statute. For a description of the textualism espoused by Justice Scalia, see my recent review of Richard Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.
It is somewhat refreshing to see that, despite political divisions, SCOTUS can still reach agreement on a case.
The case does address a question I have been curious about: why did Congress exclude "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce"? Justice Gorsuch writes that "[b]y the time it adopted the Arbitration Act in 1925, Congress had already prescribed alternative employment dispute resolution regimes for many transportation workers."
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