Amazon asks SCOTUS to rethink cert denial in 'last-mile' case

Amazon.com Inc has asked the U.S. Supreme Court to reconsider its refusal last week to decide if the company's "last mile" delivery drivers are exempt from arbitrating wage claims, in light of an appeals court ruling released a day later that deepened a circuit split on the issue.

Amazon's lawyers at Morgan Lewis & Bockius in a filing on Tuesday said an 11th U.S. Circuit Court of Appeals decision in Hamrick v. Partsfleet LLC created a clear divide on whether transportation workers who do not cross state lines are still "engaged in interstate commerce" and thus exempt from the Federal Arbitration Act.

The company said the 11th Circuit decision knocked out Amazon driver Bernard Waithaka's sole objection to the Supreme Court granting review of a 1st Circuit ruling that said he was exempt from the FAA, which was that appeals courts have been in agreement on the issue.

"Nor does any support remain for respondent's prediction that a 'consensus (would) likely continue to grow that drivers like the Amazon drivers here, who transport goods on the 'last mile' of their interstate journey, are engaged in interstate commerce,'" they wrote.

Shannon Liss-Riordan of Lichten & Liss-Riordan, who represents Waithaka, did not immediately respond to a request for comment.

Last August, about a month after the 1st Circuit ruling in Waithaka's case, the 9th Circuit came to the same conclusion in a nearly identical lawsuit, Rittmann v. Amazon, involving drivers in Washington. The Supreme Court denied certiorari in that case in February.

In the Partsfleet decision, which involved a logistics company whose drivers make local deliveries of auto parts, the 11th Circuit said that whether the FAA exemption applies depends on the actions of workers, and not the movement of the goods they transport.

The court expressly disavowed the 9th Circuit's holding in Rittmann, which had approvingly cited the 1st Circuit decision in Waithaka's case. Both courts said Amazon drivers are engaged in interstate commerce because the packages they handle typically come from other states.

The case is Amazon.com Inc v. Waithaka, U.S. Supreme Court, No. 20-1077.

For Amazon: David Salmons of Morgan Lewis & Bockius

For the plaintiffs: Shannon Liss-Riordan of Lichten & Liss-Riordan

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