United States Court of Appeals For the First Circuit

No. 22-1015

DAMON IMMEDIATO, STEPHEN LEVINE, and ERIC WICKBERG, on behalf of themselves and all others similarly situated,

Plaintiffs, Appellants,

v.

POSTMATES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges, and McElroy,* District Judge.

Shannon Liss-Riordan, with whom Michelle Cassorla and Lichten & Liss-Riordan, P.C. were on brief, for appellants. Theane Evangelis, with whom Blaine H. Evanson, Dhananjay S. Manthripragada, Shaun A. Mathur, Allison L. Mather, and Gibson, Dunn & Crutcher LLP were on brief, for appellee.

November 29, 2022

* Of the District of Rhode Island, sitting by designation. SELYA, Circuit Judge. This appeal requires us to

determine whether couriers who deliver goods from local

restaurants and retailers are transportation workers engaged in

interstate commerce such that they are exempt from the Federal

Arbitration Act (FAA or Act). See

. The district

court concluded that they were not exempt, compelled arbitration

of the parties' dispute, and dismissed the appellants' suit. The

appellants assign error: they insist that our decision in Waithaka

v. Amazon.com, Inc., in which we held that Amazon delivery drivers

responsible for the final leg of interstate package deliveries

were exempt from the FAA, demands a different outcome.

(1st Cir. 2020).

The appellants are comparing plums with pomegranates.

Unlike the Amazon delivery drivers in Waithaka, the couriers here

are not actively engaged in the interstate transport of goods and,

thus, are not within a class of workers exempted from the Act.

Accordingly, we affirm the judgment below.

I

The genesis of this appeal can be traced back to the

district court's grant of the appellee's motion to compel

arbitration. Because the motion to compel was made in conjunction

with a motion to stay, "we draw the relevant facts from the

operative complaint and the documents submitted to the district

- 2 - court in support of the motion to compel arbitration." Cullinane

v. Uber Techs., Inc.,

(1st Cir. 2018).

Defendant-appellee Postmates, Inc. operates an online

and mobile platform that enables customers to order take-out meals

from local restaurants as well as comestibles and sundries from

local grocery stores. Once an order is placed, the appellee

arranges — at the customer's behest — for a courier to deliver the

order. As relevant here, nearly all orders placed in Massachusetts

(99.66%) are fulfilled within the state, and the average distance

travelled by a courier during a delivery is about 3.7 miles.

Individuals register as couriers through a mobile

application. As part of that registration, they must accept the

appellee's "Fleet Agreement," which generally sets forth the

rights and obligations of the parties and — in the bargain —

classifies couriers as independent contractors. The agreement

contains a mutual arbitration provision that is "governed

exclusively" by the FAA and applies to "any and all claims" against

the appellee. Such claims include those that arise from disputes

over the terms of the Fleet Agreement itself, as well as those

that sound in federal, state, or local law.

The mutual arbitration provision requires that all such

disputes be resolved through final and binding arbitration in

accordance with rules set forth by the American Arbitration

Association (AAA). The provision also includes a class action

- 3 - waiver and forecloses the arbitration of representative actions.

Couriers may opt out of the mutual arbitration provision within

thirty days of accepting the Fleet Agreement but are otherwise

bound by its terms.

Plaintiffs-appellants Damon Immediato, Stephen Levine,

and Eric Wickberg worked as couriers for the appellee, making

deliveries in the greater Boston area. All of them consented to

the Fleet Agreement without opting out of the mutual arbitration

provision.1 Ostensibly aggrieved by the conditions under which

they worked, they filed suit in a Massachusetts state court on

their own behalf and on behalf of a putative class of similarly

situated couriers. They alleged that the appellee had

misclassified them as independent contractors when they were in

fact employees. They further alleged that, as such, they were

entitled to employee benefits and protections afforded under

Massachusetts law, including the reimbursement of necessary

business expenses, the payment of a minimum wage, and paid sick

leave.

1 When the appellants began working for the appellee, they each consented to the 2017 version of the Fleet Agreement. The appellee thereafter twice revised the Fleet Agreement (in 2018 and 2019), and the appellants consented to those updated terms. With respect to the parts of the mutual arbitration provision at issue here, there is no material difference between the various iterations of the Fleet Agreement.

- 4 - The appellee removed the suit to the federal district

court, see

(d), 1441, 1453, and moved to compel

arbitration.2 The appellants objected, contending that they

belonged to a class of workers exempt from the FAA under

. The district court ruled that the exemption did not apply,

granted the appellee's motion, and stayed the court case pending

the completion of arbitration.

In arbitration, the appellee made offers of judgment to

the appellants individually. Those offers were accepted. The

district court then approved the awards and dismissed the case.

This timely appeal followed. In it, the appellants

challenge both the district court's order compelling arbitration

and the resultant order of dismissal.

II

We have jurisdiction to review a district court's "final

decision with respect to an arbitration." Lamps Plus, Inc. v.

Varela,

(2019) (quoting

(a)(3)).

Our review is de novo. See Waithaka,

.

The appellants initially filed a demand for arbitration with 2

the AAA, but the AAA refused to take up the demand because the appellee had failed to abide by AAA rules in the past. (It had failed to pay required fees to the AAA when over 10,000 of its couriers simultaneously filed demands for arbitration in February of 2020.) But the AAA later agreed to arbitrate specific disputes, notwithstanding the appellee's previous failure to pay fees, so long as a court compelled arbitration of such disputes.

- 5 - Enacted in 1925, the FAA provides that written

arbitration agreements "shall be valid, irrevocable, and

enforceable."

. Thus, courts are required to place

those agreements "on an equal footing with other contracts and

enforce them according to their terms." AT&T Mobility LLC v.

Concepcion,

, 339 (2011) (internal citations omitted).

The sweep of the Act extends to arbitration clauses in any contract

that "evidenc[es] a transaction involving commerce,"

,

which is to say that the Act extends to any contract that falls

within Congress's extensive power to regulate activities

"affecting" interstate commerce, Allied-Bruce Terminix Cos. v.

Dobson,

(1995) (holding that term "involving

commerce" reflects "an intent to exercise Congress'[s] commerce

power to the full").

Even so, employment contracts for certain classes of

workers are exempt from the FAA. See Waithaka,

.

In this regard, the Act provides 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."

. The Supreme Court has

interpreted the residual clause of this exemption to apply only to

"transportation workers," meaning workers who play a "necessary

role" in the interstate transport of goods. Sw. Airlines Co. v.

Saxon,

(2022) (quoting Cir. City Stores,

- 6 - Inc. v. Adams,

(2001)). Whether workers are

classified as employees or independent contractors, though, is of

no consequence in construing the exemption: the term "contracts

of employment" applies "in a broad sense to capture any contract

for the performance of work by workers." New Prime Inc. v.

Oliveira,

(2019) (emphasis omitted).

The appellants contend that they belong to a class of

workers encompassed by the residual clause of section 1 and are

therefore outside the grasp of the FAA. Alternatively, they

contend that if they do not fall within the section 1 exemption

(because they are not workers "engaged in foreign or interstate

commerce"), then their contracts with the appellee must perforce

be outside the coverage of section 2. We address each of these

contentions in turn.3

A

To determine whether the appellants are exempt

transportation workers under section 1, we first must define the

relevant "class of workers" to which the appellants belong, and

then ascertain "whether that class is 'engaged in foreign or

3 The appellants further contend that if the FAA does not apply, Massachusetts law renders the mandatory arbitration provision in their agreements unenforceable. Because we conclude that the FAA does apply, see text infra, we need not address this contention.

- 7 - interstate commerce.'" Sw. Airlines,

(quoting

).

1

A "class of workers" is defined by the "actual work"

that those workers typically do on the job, not necessarily by the

industry in which they work.

Here, the appellants belong to

a class of couriers who deliver both meals prepared at local

restaurants and goods sold by local retailers. Those deliveries

are made in response to individual orders placed by local customers

within the state; and in the course of each delivery, the couriers

traverse, on average, only a few miles.

2

Having delineated the relevant class of workers, the

issue reduces to whether that class is "engaged in foreign or

interstate commerce."

. Unlike the words "involving

commerce" in section 2, the phrase "engaged in . . . commerce" in

section 1 does not invoke the full extent of Congress's commerce

power but, rather, has "a more limited reach." Cir. City,

; see Wallace v. Grubhub Holdings, Inc.,

,

800 (7th Cir. 2020) (describing scope of section 1's "engaged in

commerce" language as "narrower" than scope of the phrase

"involving commerce" found in section 2). That limited reach

extends only to workers who are "actively" engaged in moving "goods

across borders via the channels of foreign or interstate commerce."

- 8 - Sw. Airlines,

. Put another way, the workers

must play a "necessary role in the free flow of goods" across state

or international borders.

(quoting Cir. City,

). It follows, we think, that section 1 plainly applies to

workers who in fact carry cargo across state borders. See New

Prime,

. It also applies to those who load

and unload cargo in the course of interstate shipments as that

work is "so closely related to interstate transportation as to be

practically a part of it." Sw. Airlines,

(quoting Balt. & Ohio Sw. R.R. v. Burtch,

(1924)).

a

The extent of the exemption is not so clear, though,

"when the class of workers carries out duties further removed from

the channels of interstate commerce or the actual crossing of

borders." Id. at n.2. Because this is such a case, we must

carefully plot the contours of the phrase "engaged in foreign or

interstate commerce."

At the outset of this inquiry, we are guided by our

earlier decisions. See Cunningham v. Lyft, Inc.,

(1st Cir. 2021); Waithaka,

. And we hew

to the path set forth by the Supreme Court by looking to the

interpretation of similar terms in other statutory contexts, as

- 9 - well as by examining the text of the statute itself. See Cir.

City,

.

We start with Waithaka. There, drivers for the

ubiquitous online retailer Amazon posited that they were

transportation workers enveloped by the section 1 exemption. See

Waithaka,

. They were not involved in the shipment

of packages across state lines but, instead, were "last mile"

drivers who delivered packages to Amazon customers — that is, they

were responsible for the final leg of a package's interstate

journey.

. To determine whether those last-mile

drivers fell within the section 1 exemption, we examined decisions

interpreting the phrase "engaging in commerce between any of the

several States" as used in the Federal Employers Liability Act,

. See

. From those decisions we gleaned

that workers who transport goods "entirely within a single state"

may sometimes be workers "engaged in interstate commerce" as long

as they actively contribute to the larger interstate movement of

those goods.

; see Phila. & Reading Ry. Co. v. Hancock,

(1920); Seaboard Air Line Ry. v. Moore,

(1913). Consequently, we held that the last-mile

drivers were workers engaged in "the flow of interstate commerce."

Waithaka,

. In so holding, we noted that at the

time the FAA was enacted, "workers moving goods or people destined

for, or coming from, other states" were sometimes considered to be

- 10 - "engaged in interstate commerce," even if the workers were

"responsible only for an intrastate leg of that interstate

journey."

Cunningham reflects the other side of the coin. There,

we held that rideshare drivers transporting passengers to and from

the principal airport serving the greater Boston area were not

workers engaged in interstate commerce. See Cunningham,

. In reaching that conclusion, we drew from the Supreme

Court's decision in United States v. Yellow Cab Co.,

(1947), overruled on other grounds by Copperweld Corp. v. Indep.

Tube Corp.,

(1984).

In Yellow Cab, the Court addressed the issue of whether

taxi service from Chicago rail stations implicated "interstate

commerce sufficient to bring the Sherman Antitrust Act into play."4

Cunningham,

. The Court considered two scenarios.

The first involved taxi service arranged by the railroads for

between-station transport. See Yellow Cab,

. At

the time, many interstate rail passengers were forced to disembark

at one Chicago station (then a major railway hub) and transfer to

4 The Sherman Act forbids the restraint or monopolization of "trade or commerce among the several States."

, 2. Although that law does not directly define the narrower "engaged in commerce" term we seek to exegete here, we found it logical to presume that activity not covered by the Sherman Act would necessarily be excluded from the scope of the narrower "engaged in interstate commerce" phraseology. See Cunningham,

.

- 11 - another to continue their interstate journeys. See

The

between-station service, then, was simply a local leg of a longer

interstate trip, making it "clearly a part of the stream of

interstate commerce."

As the Court explained:

When persons or goods move from a point of origin in one state to a point of destination in another, the fact that a part of that journey consists of transportation by an independent agency solely within the boundaries of one state does not make that portion of the trip any less interstate in character. That portion must be viewed in its relation to the entire journey rather than in isolation. So viewed, it is an integral step in the interstate movement.

Id. at 228-29 (internal citations omitted).

The second scenario concerned local taxi service

procured by individual customers at either the beginning or the

end of their railway journeys. See id. at 230. The Court stressed

that interstate commerce "is an intensely practical concept drawn

from the normal and accepted course of business," id. at 231, and

that although an individual's interstate journey may (in a sense)

begin when one "leaves or enters his room or office and descends

or ascends the building by elevator," id., those incidental aspects

of the journey are not understood to be a "constituent part of the

interstate movement," id. at 232. The Court then held that the

independent local taxi service was not an "integral part of

interstate transportation" and, thus, was not covered by the

Sherman Act. Id. at 233.

- 12 - In Cunningham, we followed the Court's lead and

concluded that rideshare drivers who drive passengers to or from

the airport are not engaged in interstate commerce because they

provide local transport service akin to that exemplified in the

second Yellow Cab scenario. See Cunningham,

.

Such a result was compatible with Waithaka, we reasoned, because

the last-mile delivery drivers in that case were responsible for

a constituent part of the interstate delivery service that Amazon

agreed to provide to its customers. See

. So viewed,

the last-mile drivers were analogous to the taxi drivers in the

first Yellow Cab scenario as each driver's delivery was part of a

longer interstate journey. See id.5

It is also clear from other statutory contexts that the

phrase "engaged in interstate commerce" is a term of art that does

not encompass the local retail of goods, even if those goods

previously have been shipped interstate. See, e.g., United States

v. Am. Bldg. Maint. Indus.,

(1975) (explaining

that interstate shipment of cleaning supplies did not render

janitorial services companies that purchased them from local

5 The appellants suggest that Yellow Cab and Cunningham are inapposite because they concern the transport of people as opposed to goods. For present purposes, that distinction is irrelevant: we already have held that section 1 applies to transportation workers within the flow of interstate commerce regardless of whether they transport goods or people. Waithaka,

.

- 13 - distributor "engaged in commerce" within meaning of Clayton Act,

, because "flow of commerce had ceased" by time of

purchase). In other words, once an interstate shipment arrives at

a local retailer and is "there held solely for local disposition

and use," the goods are no longer considered to be "in interstate

commerce." A.L.A. Schechter Poultry Corp. v. United States,

(1935) (construing term "in . . . interstate

commerce" in National Industrial Recovery Act, ch. 90, § 3,

, 197 (1933)).

History, too, helps guide our inquiry. When Congress

enacted the FAA, the local retail of goods was not understood to

be part of interstate commerce.6 See Indus. Ass'n of S.F. v.

United States,

(1925). The delivery of interstate

goods was the "closing incident of the interstate movement" and

subsequent transactions were then the "result of new and

We are mindful that the Supreme Court has rejected a method 6

of interpreting the phrase "engaged in commerce" that considers "the scope of the Commerce Clause, as then elaborated by the Court, at the date of the FAA's enactment in order to interpret what the statute means now." Cir. City,

. Yet, we also have been directed to interpret the statutory text according to the meaning of its words as they were understood at the time Congress enacted the statute. See Sw. Airlines,

; New Prime,

. For present purposes, it suffices to say that we look to cases contemporaneous with the enactment of the FAA to confirm our understanding of "engaged in foreign or interstate commerce" as a term of art and to provide useful context as to the statute's meaning when it was enacted. We do not endeavor to "deconstruct" section 1 based on the state of Commerce Clause jurisprudence in 1925. Cir. City,

.

- 14 - independent arrangements." Id.; see Missouri ex rel. Barrett v.

Kan. Nat. Gas Co.,

(1924) ("With the delivery of

the gas to the distributing companies, however, the interstate

movement ends. Its subsequent sale and delivery by these companies

to their customers at retail is intrastate business and subject to

state regulation."); Weigle v. Curtice Bros. Co.,

(1919) (holding that state regulation concerning local retail

of interstate food products did not affect "the action of Congress

in interstate commerce" because challenged regulation was "the

exercise of an authority outside of that commerce").

Nor does the term "engaged in interstate commerce"

extend to the intrastate sale of locally manufactured goods. See

Gulf Oil Corp. v. Copp Paving Co.,

(1974)

(holding that sale of asphalt produced in-state was not a sale "in

commerce" within the meaning of the Clayton and Robinson-Patman

Acts,

(a), 14, 18). That is the case even if the

intrastate sale might, in a broader sense, affect interstate

commerce. See FTC v. Bunte Bros.

(1941)

(rejecting contention that Federal Trade Commission Act's

proscription against unfair trade practices "in commerce,"

(a), included practices of intrastate candy

manufacturer and retailer that were potential "handicap to

interstate competitors").

- 15 - Refining the matter to bare essence, we proceed upon the

following principles. The term "engaged in foreign or interstate

commerce" in section 1 can apply to workers who are engaged in the

interstate movement of goods, even if they are responsible for

only an intrastate leg of that movement. See Waithaka,

. Their work, though, must be a constituent part of that

movement, as opposed to a part of an independent and contingent

intrastate transaction. See Cunningham,

; see also

Yellow Cab,

. And the interstate movement

necessarily terminates when those goods arrive at the local

manufacturer or retailer (as local manufacturing and retailing

have not been understood to be "in" interstate commerce). See,

e.g., Bunte Bros.,

; A.L.A. Schechter Poultry Corp.,

.

This interpretation is consistent with the Court's

construction of section 1's residual clause in Circuit City.

Invoking the ejusdem generis canon of statutory construction, the

Court instructed that "the residual clause should be read to give

effect to the terms 'seamen' and 'railroad employees,' and should

itself be controlled and defined by reference to the enumerated

categories of workers which are recited just before it." Cir.

City,

; see Wallace, 970 F.3d at 800-01 (explaining

that "presence of specific exemptions for 'seamen' and 'railroad

[employees]'" helps define "the scope of the residual clause,"

- 16 - which is "narrower" than the coverage provision of section 2); see

also Me. Forest Prods. Council v. Cormier,

(1st

Cir. 2022) (applying ejusdem generis canon). It follows that the

workers included in section 1's residual clause should be necessary

to the interstate transport of goods in the same way as seamen and

railway workers. Excluding those who locally transport goods —

not as part of an interstate movement but, instead, as a contingent

consequence of it — is in keeping with a faithful reading of the

statute.

From what we have said, it is conspicuously clear that

the appellants do not belong to a class of workers "engaged in

foreign or interstate commerce."

. Although the

appellants transport goods, qua couriers, they do so as part of

separate intrastate transactions that are not themselves within

interstate commerce. That the delivered items may have once

travelled across state borders does not alter the equation. The

interstate journey terminates when the goods arrive at the local

restaurants and retailers to which they are shipped. Customers

then purchase those meals and goods from local businesses. Thus,

when the couriers set out to deliver customer orders, they do so

as part of entirely new and separate transactions. And the record

is luminously clear that those new and separate transactions are

intrastate in nature as almost all deliveries made by the couriers

as a class are completed within the state in which the order is

- 17 - placed. In a nutshell, couriers making deliveries from local

businesses are transporting goods as part of local intrastate

commerce.

b

The appellants resist this conclusion, arguing that our

decision in Waithaka demands a different result. They argue that

the couriers deliver goods that remain in interstate commerce until

those goods are received by retail consumers. The couriers

therefore are responsible — their thesis runs — for an intrastate

leg of what is a longer interstate shipment such that the couriers,

like the last-mile drivers in Waithaka, are within a class of

workers exempted from the FAA. According to the appellants'

thesis, the arrival of the goods at local restaurants and

convenience stores does not mark an end to the interstate journey;

rather, that delivery is no more than a momentary halt in the flow

of commerce — much like the temporary storage of Amazon products

in warehouses before drivers deliver them to customers.

We reject the appellants' thesis because it ignores the

fundamental difference in the relevant transactions. In Waithaka,

customers bought goods directly from Amazon, which orchestrated

the interstate movement of those goods and arranged, as part of

the purchase, for their delivery directly to the customer. That

local delivery was therefore integral to the interstate movement

- 18 - such that the goods remained within the flow of interstate commerce

until arriving at the customer's doorstep.

The case at hand is a horse of a distinctly different

hue. Nothing in the record suggests (nor have the appellants

argued) that customers summoning couriers for local deliveries are

buying goods as part of an interstate transaction. To the

contrary, the goods are purchased from local vendors — and at that

point, the goods have already exited the flow of interstate

commerce. See Am. Bldg. Maint. Indus.,

. Here, it

is nose-on-the-face plain that the interstate movement terminated

when the goods arrived at local restaurants and grocery stores.

It makes little sense, then, to suggest that when those goods are

again transported contingent to an intrastate purchase — the raw

ingredients now commingled with others and prepared into a meal;

the packaged good proceeding singly, bereft of its interstate

brethren — they somehow resurface into the flow of interstate

commerce.

Let us be perfectly clear. To be "engaged in interstate

commerce" is a "practical concept" that excludes intrastate

transactions that bear only a "casual" or "incidental"

relationship to the interstate movement of goods or people. Yellow

Cab,

. Purchases from local restaurants and

businesses are emblematic of such intrastate transactions. The

deliveries that are thereafter made in fulfillment of those

- 19 - purchases bear only a tenuous relationship to the interstate

movement of goods and therefore cannot bring the couriers within

the protective carapace of the Act's section 1 exemption.

The appellants press a related argument. They insist

that courier deliveries are not incidental to interstate shipments

but rather are so integral to them that the couriers are akin to

workers who load and unload cargo during its interstate transport.

See Balt. & Ohio Sw. R.R.,

. That analogy is

fatally flawed: although those who load interstate cargo are "part

of the interstate transportation of goods," Sw. Airlines,

, the same cannot be said of the couriers (who play no

role in the interstate movement of goods). It is by happenstance,

and not a result of any contribution of theirs to the interstate

journey, that the goods they carry have crossed a state border at

some point in time. In other words, the interstate journeys of

the goods that the couriers carry have already been completed by

the time the couriers enter the picture, and, thus, the couriers'

trips are distinct intrastate journeys.

The appellants also argue that the fact that the goods

come to rest at local restaurants and convenience stores is of no

account because multiple entities may be responsible for different

portions of an item's interstate transport without interrupting

the flow of the interstate movement. There may be a kernel of

truth in the appellants' suggestion: we do not hold here that the

- 20 - interstate movement must consist of a single transaction. It may

be possible that goods can change hands several times during

transport without exiting the flow of interstate commerce. See

Stafford v. Wallace,

(1922) (holding that

selling and buying of livestock at stockyard were transactions in

interstate commerce because "[s]uch transactions can not be

separated from the [interstate] movement to which they contribute

and necessarily take on its character"). And we made clear in

Waithaka that our holding did not depend upon a class of workers

being employed by a company of any particular size or geographic

scope. See Waithaka,

.

All of that is true as far as it goes — but it does not

take the appellants very far. The appellants conflate the

necessary intrastate logistics or transactions that are integral

to the interstate transport of goods (and that are, therefore,

"in" interstate commerce) with purely local economic activity that

may depend on interstate commerce but is — "[f]rom the standpoints

of time and continuity" — nonetheless "distinct" and "separate."

Yellow Cab,

.

That is not to say that local economic activity cannot,

under any circumstance, be integral to the interstate movement of

goods or people. The "flow of interstate commerce" is a concept

that looks to the "economic continuity in the generation of goods

and services for interstate markets and their transport and

- 21 - distribution to the customer." Gulf Oil,

. But it

is precisely that "economic continuity" that is lacking here: the

appellants do not identify any record evidence that suggests that

customers used the appellee's platform to arrange for the

interstate delivery of their ordered goods (as was the case in

Waithaka). Nor do the appellants contest the fact that couriers

routinely deliver goods as part of local purchases from local

restaurants and retailers.

Rather, the appellants' asseverational array rests on

the notion that because couriers deliver goods that previously had

moved across state borders, they are therefore transportation

workers engaged in interstate commerce. That argument fails

because the fact that the goods have moved across state borders is

not alone sufficient to bring the workers within the purview of

section 1. Instead, the workers must be actively engaged in the

interstate transport. See Sw. Airlines,

.

In Waithaka, the last-mile drivers played an active role

in completing interstate package deliveries. In this case, by

contrast, the couriers deliver goods that have already exited the

flow of interstate commerce. They are therefore not exempt from

the FAA by reason of section 1.

Arriving at this conclusion in no way requires us to

blaze a new trail. Courts that have addressed this issue under

the same circumstances have reached the same conclusion. See,

- 22 - e.g., Wallace, 970 F.3d at 803; Archer v. Grubhub Inc.,

, 1031-33 (Mass. 2022). The appellants contend that Walling

v. Jacksonville Paper Co.,

(1943), is to the contrary.

We do not agree.

In Walling, the Supreme Court held that a paper

wholesaler that made intrastate deliveries was "in commerce" as

understood by the Fair Labor Standards Act,

(a),

207(a).

. The Court stated that so long as there

was a "practical continuity of movement" of goods from the out-

of-state paper manufacturers, through the wholesaler's warehouse,

and afterwards on to the customer, the interstate journey was not

"ended by reason of a temporary holding of the goods at the

warehouse."

.

Our conclusion here — and the holdings in Wallace and

Archer — are not to the contrary. The couriers in this case do

not make deliveries on behalf of wholesalers or distributors that

transport goods to local retail establishments. Instead, they

make deliveries to fulfill local retail sales.7 Walling makes

7 For the same reason, this case is distinguishable from Nieto v. Fresno Beverage Co., in which the court held that drivers making intrastate deliveries for a beverage distributor (that had admitted that the beverage shipments were "part of a continuous stream of interstate travel") were workers exempt from the FAA under section 1.

(Cal. Ct. App. 2019). Nothing in that decision suggests that deliveries in fulfillment of local retail transactions should be considered to come within the flow of interstate commerce.

- 23 - clear that such sales should not be considered "in commerce." Id.

at 571.

The short of it is that couriers who deliver meals and

goods as the result of local purchases from local vendors are not

within a class of workers "engaged in foreign or interstate

commerce" who are exempt from the FAA under section 1. The FAA

therefore applies to their agreements with the appellee unless

those agreements fall outside the coverage of section 2. It is to

that question that we now turn.

B

As a fallback, the appellants argue that if they are not

deemed to be workers "engaged in" interstate commerce for the

purpose of section 1, the FAA cannot apply to them at all because

their work would then fall outside the coverage provision of

section 2, which extends the FAA's reach to all contracts

"involving" interstate commerce.

, 2. They reason

that if they are not workers "engaged in" interstate commerce,

then their contracts cannot conceivably "involv[e]" commerce under

the Act.

That argument cannot withstand scrutiny. The terms

"engaged in commerce" and "involving commerce" are not

coextensive. Cir. City,

. In particular, the term

"involving commerce" has been construed to extend the FAA's reach

to the limits of Congress's commerce power. Allied-Bruce Terminix

- 24 - Cos.,

. Thus, it is entirely possible that an

employment contract for a worker who is not "engaged in interstate

commerce" within the purview of section 1 may nonetheless be a

contract "involving commerce" within the purview of section 2.

See Wallace, 970 F.3d at 803.

The appellants argue that the Supreme Court's statement

in New Prime that "[section] 1 helps define [section] 2's terms,"

139 S. Ct. at 537, altered the Court's prior decisions in Allied-

Bruce and Circuit City, recasting the respective scopes of the

exemption and coverage provisions such that they are now

coextensive with one another. That argument misreads New Prime.

There, the Court simply stated that a court's power to stay

litigation and compel arbitration under sections 3 and 4 of the

FAA are limited to cases that arise from contracts covered by

section 2. Id. But section 2's scope does not capture contracts

that are exempt under section 1. See id. The section 1 exemption,

therefore, "helps define [section] 2's terms." Id. Because a

court's power to compel arbitration depends on whether a contract

is excluded by section 1 or encompassed by section 2, a court must

consider those provisions in relation to each other when

determining if it has the power to compel arbitration. See id.

Thus, the New Prime Court's instruction to consider the two

provisions of the FAA in relation to each other in no way calls

- 25 - into question the Court's earlier decisions in Allied-Bruce and

Circuit City.

We add, moreover, that the Court reconsiders its prior

decisions with the "utmost caution," State Oil Co. v. Khan,

(1997), and the overturning of its own precedent is

"never a small matter," Kimble v. Marvel Ent., LLC,

(2015). It would therefore be unreasonable to assume that the

Court reversed course in New Prime as dramatically as the

appellants contend it did without any comment or discussion. It

is apparent to us that Allied-Bruce and Circuit City reflect the

law as it currently stands, and we are duty bound to apply that

law here.

That ends this aspect of the matter. The contracts the

appellants signed with the appellee are subject to the FAA as long

as they fall within the limits of Congress's power to regulate

activities "affecting" interstate commerce. Allied-Bruce Terminix

Cos.,

. And it is difficult to fathom how they

could not here: the contracts at issue concerned the delivery of

goods in local retail, a commercial activity that — although

distinct from the interstate shipment of goods — has a substantial

effect on interstate commerce. See United States v. Lopez,

(1995) ("We do not doubt that Congress has

authority under the Commerce Clause to regulate numerous

- 26 - commercial activities that substantially affect interstate

commerce . . . .").

The appellants do not argue to the contrary, except to

repeat the refrain that, "[a]s a logical matter," if they are not

workers "engaged in commerce," then their contracts cannot be

"involved" in commerce.8 But that argument only holds if "engaged

in" and "involving" mean the same thing — and in this context,

they do not. See Cir. City,

; see also Wallace,

970 F.3d at 803.

In sum, the appellants' employment contracts are covered

under section 2 of the Act because couriers who make local retail

deliveries affect interstate commerce, but those contracts are not

exempt under section 1 because the appellants are not part of a

class of workers actively engaged in the interstate transport of

goods. The district court was therefore required to compel

arbitration according to the terms agreed to by the parties.

8 The sole authority that the appellants cite in support of this argument concerned postal workers engaged in the interstate shipment of packages, who neither party to that case contested were workers "engaged in commerce." Am. Postal Workers Union v. U.S. Postal Serv.,

(11th Cir. 1987). That case is factually distinguishable from the case at hand as the couriers — unlike postal workers — are simply not engaged in the interstate shipment or delivery of packages.

- 27 - III

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 28 -