Bissonnette v. Lepage Bakeries Park St., LLC
| Decision Date | 15 February 2023 |
| Docket Number | 20-1681 |
| Parties | NEAL BISSONNETTE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND TYLER WOJNAROWSKI, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellants, v. LEPAGE BAKERIES PARK ST., LLC, C.K. SALES CO., LLC, AND FLOWERS FOODS, INC., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of February, two thousand twenty-three.
For Plaintiffs-Appellants: Harold L. Lichten, (Matthew Thomson Zachary L. Rubin, on the brief) Lichten & Liss-Riordan P.C., Boston, MA.
For Defendants-Appellees: Traci L. Lovitt (Matthew W. Lampe Amanda K. Rice, on the brief), Jones Day, New York, NY &Detroit, MI, and Margaret Santen Hanrahan, Ogletree Deakins Nash Smoak &Stewart, P.C., Charlotte, NC, on the brief.
Present: DEBRA ANN LIVINGSTON, Chief Judge, JOSE A. CABRANES, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK, WILLIAM J. NARDINI, STEVEN J. MENASHI, EUNICE C. LEE, BETH ROBINSON, MYRNA PEREZ, ALISON J. NATHAN, SARAH A. L. MERRIAM, Circuit Judges.
Following disposition of this appeal on May 5, 2022 Plaintiffs-Appellants filed a petition for rehearing en banc. The opinion was amended September 26, 2022, and a judge on the panel thereafter requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, the petition for rehearing en banc is hereby DENIED.
Alison J. Nathan, Circuit Judge, joined by Beth Robinson and Myrna Perez, Circuit Judges, dissents by opinion in the denial of rehearing en banc.
Dennis Jacobs, Circuit Judge, filed a statement with respect to the denial of rehearing en banc.
Rosemary S. Pooler, Circuit Judge, filed a statement with respect to the denial of rehearing en banc.
ALISON J. NATHAN, Circuit Judge, joined by BETH ROBINSON and MYRNA PEREZ, Circuit Judges, dissenting from the order denying rehearing en banc:
In this Circuit, rehearing en banc is quite rare. And for good reason. Rehearing cases only in exceptional circumstances promotes virtues such as judicial economy and collegiality and accords with our Circuit's longstanding tradition "of general deference to panel adjudication-a deference which holds whether or not the judges of the Court agree with the panel's disposition of the matter before it." New York v. Dep't of Just., 964 F.3d 150, 166 (2d Cir. 2020) (). Even so, one circumstance in which this rare step is warranted is when an intervening decision of the Supreme Court directly conflicts with circuit precedent.
The Supreme Court's decision in Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783 (2022), decided after the panel issued its original decision in this case, is just such an intervening decision. Both Saxon and this case involve statutory interpretation of Section 1 of the Federal Arbitration Act (FAA). The FAA broadly requires courts to enforce arbitration agreements in any "contract evidencing a transaction involving commerce." 9 U.S.C. § 2. Section 1 exempts from the Act's coverage "contracts of employment of seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce." Id. § 1. Prior to Saxon, our Court interpreted this exemption as limited to "workers involved in the transportation industries." Adams v. Suozzi, 433 F.3d 220, 226 n.5 (2d Cir. 2005) (citation omitted); see also Md. Cas. Co. v. Realty Advisory Bd. on Lab. Rels., 107 F.3d 979, 982 (2d Cir. 1997); Erving v. Va. Squires Basketball Club, 468 F.2d 1064, 1069 (2d Cir. 1972). The original majority opinion in this case applied this circuit precedent without the benefit of the Supreme Court's decision in Saxon and concluded that the exemption did not apply to Appellants, truck drivers transporting baked goods. The majority so held because the Appellants are employed by a bakery conglomerate, which the court determined is not an employer in the transportation industry. Accordingly, the original opinion concluded that the Plaintiff truck drivers would have to pursue their claims for unpaid wages through arbitration, rather than in court. Bissonnette v. LePage Bakeries Park St., LLC, 33 F.4th 650, 657 (2d Cir.), amended and superseded on reh'g, 49 F.4th 655 (2d Cir. 2022). Judge Pooler's original dissent argued that this was error from the get-go. See Bissonnette, 33 F.4th at 662-68. Agree or disagree, prior to Saxon, the original majority opinion's conclusion constituted an available application of then-controlling Second Circuit precedent.
But then the Supreme Court handed down Saxon. This intervening decision expressly rejects the notion embedded in our circuit precedent that the industry in which an employer operates, rather than the work that the employee does, determines whether the employee belongs to a "class of workers engaged in foreign or interstate commerce." Saxon, a ramp supervisor at Southwest Airlines whose work regularly required her to load and unload cargo from planes, brought claims against Southwest under the Fair Labor Standards Act. Saxon, 142 S.Ct. at 1787. Southwest contended that Saxon's claims had to be arbitrated because the Section 1 exemption applied only to workers who physically move goods across state or international boundaries. In contrast, Saxon argued that the exemption covers all workers who carry out the customary work of airlines. Id. at 1790-91. The Supreme Court, rejecting both interpretations, concluded that Saxon fit within the exemption because "Saxon is . . . a member of a 'class of workers' based on what she does at Southwest, not what Southwest does generally." Id. at 1788 (emphasis added). Because what Saxon does is load cargo on and off airplanes, the Supreme Court held that she could litigate, rather than arbitrate, her claims. Id. at 1793.
In reaching this conclusion, Justice Thomas, writing for a unanimous Court, focused on the text of Section 1 exempting "seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. He reasoned that "[b]ecause 'seamen' includes only those who work on board a vessel, they constitute a subset of workers engaged in the maritime shipping industry," not the entire industry. Id. at 1791. The carveout, therefore, does not "identify[] transportation workers on an industrywide basis." Id. Based on the text of the statute, the Court further provided a simple and straightforward test to determine who is exempted. The Court held that "any class of workers directly involved in transporting goods across state or international borders falls within § 1's exemption." Id. at 1789.
Unsurprisingly, the panel in this case agreed to panel rehearing in light of Saxon. But after considering the Supreme Court's opinion, the panel majority issued an amended opinion that continues to do the opposite of what Saxon's reasoning and holding require. The amended majority opinion does not consider the work performed by Appellants-driving trucks and delivering goods-in determining whether they are transportation workers. Rather, the amended opinion concludes that "the distinctions drawn in Saxon do not come into play" because they apply only when an employer operates in a transportation industry, and the employer in this case is a bakery rather than something like an airline or a trucking company. Bissonnette, 49 F.4th at 661-62. Thus, the amended majority opinion continues to identify transportation workers on an industrywide basis and expressly holds: "[T]he plaintiffs are not 'transportation workers,' even though they drive trucks, because they are in the bakery industry, not a transportation industry." Id. at 657.
The amended majority opinion attempts to reconcile this move with Saxon by ignoring Justice Thomas's textual reasoning and supplanting the Supreme Court's clear interpretive directives with its own atextual test. Saxon explained that the FAA's use of the words "workers" and "engaged," rather than "employees" or "servants," emphasizes "the performance of work" and "the actual work that the members of the class, as a whole, typically carry out." Saxon, 142 S.Ct. at 1788 (emphasis in original). Paying no heed to this analysis, the amended opinion instead requires workers to establish eligibility for the Section 1 exemption based on both the work they perform and the work their employer does on an industry-wide basis. See Bissonnette, 49 F.4th at 661.
The amended opinion's primary justification for establishing this multilayered framework, aside from fidelity to past Second Circuit precedent, is that the examples of "'seamen' and 'railroad employees' are telling because they locate the 'transportation worker' in the context of a transportation industry." Id. at 660. In so reasoning, the majority sticks with what the Supreme Court expressly termed a "flawed premise[:] that 'seamen' and 'railroad employees' are both industrywide categories." Saxon, 142 S.Ct. at 1791. Whereas Justice Thomas rejected this premise because the term "seamen" does not encompass the entire shipping industry, the amended opinion presumes that all "seamen" work for transportation companies. But just as truck drivers sometimes work for bakery conglomerates, seamen might work for companies in a non-transportation industry that operate their own ships, say, fisheries, large retailers, or oil companies. It is impossible to reconcile the amended opinion's analysis with the Supreme Court's contrary conclusion that "the two terms [seamen and railroad employees]...
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