Appellant's Opening Brief, Lambert v. Tesla, 18-15203

Case: 18-15203, 05/09/2018, ID: 10867641, DktEntry: 8, Page 1 of 54
No. 18-15203
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
DEWITT LAMBERT,
Plaintiff-Appellant,
v.
TESLA, INC., DBA TESLA MOTORS, INC.
Defendant-Appellee.
On Appeal from the United States District Court

for the Northern District of California
No. 3:17-cv-05369
Hon. Vince Chhabria
APPELLANT’S OPENING BRIEF
Lawrence A. Organ (SBN 175503)

California Civil Rights Law Group
332 San Anselmo Ave.,
San Anselmo, CA 94960
(415) 453-4740
[email protected]
Attorneys for Appellant

DeWitt Lambert
CORPORATE DISCLOSURE STATEMENT
Appellant is a natural person. Accordingly, he is not required to file any
corporate disclosure statement pursuant to Federal Rule of Appellate Procedure
26.1.
Date: May 9, 2018
California Civil Rights Law Group
/s/ Lawrence A. Organ

Lawrence A. Organ
Attorney for Appellant
i
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ......................................................... i
INTRODUCTION .....................................................................................................1
JURISDICTIONAL STATEMENT ..........................................................................3
STATUTORY AUTHORITIES ................................................................................4
ISSUES PRESENTED...............................................................................................9
STATEMENT OF THE CASE ..................................................................................9
SUMMARY OF THE ARGUMENT ......................................................................12
STANDARD OF REVIEW .....................................................................................13
ARGUMENT ...........................................................................................................14
I. The Supreme Court’s Decision in Gilmer Provides the Correct Test

for Determining Whether Arbitration is Appropriate Under Section
1981 .....................................................................................................16
A. Section 118 Of The Civil Rights Act Of 1991 Encourages

Arbitration Only Where Appropriate And To The Extent
Authorized By Law ...................................................................16
B. This And Other Circuits Recognize The Limited Scope Of

Section 118 ................................................................................18
C. This Circuit Has Held That Gilmer Provides The Correct Test
For Determining Whether Arbitration Is Appropriate And
Authorized By Law ...................................................................19
II. Under Gilmer, Section 1981 Claims are Non-Arbitrable ...................20
A. Section 1981’s Text Provides For Federal Judicial

Enforcement, Rather Than Private Arbitration .........................22
ii
B. Section 1981’s Legislative History Demonstrates Congress’s

Intent Not To Allow A Waiver Of A Judicial Forum...............24
C. Section 1981’s Fundamental Purposes Are Incompatible With

Mandatory Arbitration ..............................................................32
CONCLUSION ........................................................................................................41
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Armendariz v. Found. Health Psychcare Servs., Inc.,

24 Cal. 4th 83 (2000) .................................................................................... 19-20
Ashbey v. Archstone Property Management, Inc.,
785 F.3d 1320 (9th Cir. 2015) ......................................................................18, 25
Bailey v. United States,
516 U.S. 137 (1995) ............................................................................................18
Boise Cascade Corp. v. E.P.A.,
942 F.2d 1427 (9th Cir. 1991) ............................................................................17
Carroll v. Gen. Accident Ins. Co. of Am.,
891 F.2d 1174 (5th Cir. 1990) ............................................................................35
Circuit City Stores, Inc. v. Adams,
279 F.3d 889 (9th Cir. 2002) ..............................................................................13
Digital Equipment Corp. v. Desktop Direct, Inc.,

511 U.S. 863 (1994) ..............................................................................................4
E.E.O.C. v. Luce, Forward, Hamilton & Scripps,
345 F.3d 742 (9th Cir. 2003) ........................................................................11, 19
Ferguson v. Corinthian Colleges, Inc.,

733 F.3d 928 (9th Cir. 2013) ........................................................................ 33-34
Foltz v. State Farm Mut. Auto. Ins. Co.,

331 F.3d 1122 (9th Cir. 2003) ............................................................................36
Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991) .......................................................................................passim
Green Tree Fin. Corp.-Alabama v. Randolph,

531 U.S. 79 (2000) ................................................................................................3
iv
Harden v. Roadway Package Sys., Inc.,

249 F.3d 1137 (9th Cir. 2001) ............................................................................13
Hearn v. W. Conference of Teamsters Pension Tr. Fund,

68 F.3d 301 (9th Cir. 1995) ................................................................................17
Interactive Flight Techs., Inc. v. Swissair Swiss Air Transp. Co.,

249 F.3d 1177 (9th Cir. 2001) .............................................................................. 4
John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank,
510 U.S. 86 (1993) ........................................................................................ 17-18
Jones v. Alfred Mayer Co.,

392 U.S. 409 (1968) ............................................................................................24
Miles v. Apex Marine Corp.,

498 U.S. 19 (1990) ..............................................................................................19
Home Ins. Co. of New York v. Morse,
87 U.S. 445 (1874) ..............................................................................................38
Mitsubishi v. Soler Chrysler-Plymouth,
473 U.S. 614 (1985) ...................................................................................... 23-24
Nixon v. Warner Comms., Inc.,
435 U.S. 589 (1978) ............................................................................................36
Nw. Forest Res. Council v. Glickman,
82 F.3d 825 (9th Cir. 1996) ................................................................................17
Price v. Pelka,
690 F.2d 98 (6th Cir. 1982) ................................................................................41
Prudential Ins. Co. of Am. v. Lai,

42 F.3d 1299 (9th Cir. 1994) ..............................................................................18
Runyon v. McCrary,
427 U.S. 160 (1976) ......................................................................................25, 33
Skirchak v. Dynamics Research Corp.,
508 F.3d 49 (1st Cir. 2007) ........................................................................... 18-19
v
Valley Broad. Co. v. U.S. Dist. Court—D. Nev.,

798 F.2d 1289 (9th Cir. 1986) ............................................................................36
Ziober v. BLB Resources, Inc.,

839 F.3d 814 (9th Cir. 2016) ........................................................................ 22-23
Statutes
28 U.S.C. § 1291 ........................................................................................................3

28 U.S.C. § 1331 ........................................................................................................3
28 U.S.C. § 2107 ........................................................................................................3

42 U.S.C. § 1981 ...............................................................................................passim
Age Discrimination in Employment Act, 29 U.S.C. § 621 .....................................25
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ...................................18

Civil Rights Act of 1866, ch. 31, 14 Stat. 27-30 (April 9, 1866)
............................................................................................. 4-8, 16, 17, 21, 24, 25
Civil Rights Act of 1870, ch. 114, 16 Stat. 140 (May 31, 1870) .............................22
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991)
......................................................................................... 1-2, 8, 12, 14, 16, 17, 20
Declaratory Judgment Act, 22 U.S.C. § 2201 .....................................................3, 10
Federal Arbitration Act, 9 U.S.C. § 1 et seq. .........................................................2, 8
Judiciary Act of 1875, 18 Stat. 470 (1875) ..............................................................30

Sherman Act, 15 U.S.C. §§ 1-7 ...............................................................................23
Uniformed Services Employment and Reemployment Rights Act, 38

U.S.C. § 4301 et seq. .................................................................................... 22-23
Other Authorities
Addison C. Burnham, Arbitration as a Condition Precedent, 11

HARV. L. REV. 234 (1897) ...................................................................................23
vi
Adjoa Artis Aiyetoro, Truth Matters: A Call for the American Bar
Association to Acknowledge Its Past and Make Reparations to
African Descendants, 18 GEO. MASON U. CIV. RTS. L.J. 51 (2007)................... 28
Alexander J.S. Colvin, ECON. POL. INST, The growing use of

mandatory arbitration: Access to the courts is now barred for
more than 60 million American workers (2017).................................................32
Amy J. Schmitz, Untangling the Privacy Paradox in Arbitration, U.

KAN. L. REV. 1211 (2006) ..................................................................................34
Cong. Globe, 39th Cong. 1st Sess. (1866) ............................................. 26-27, 30, 34
Danielle Tarantolo, From Employment to Contract: Section 1981 and
Antidiscrimination Law for the Independent Contractor Workforce,
116 Yale L.J. 170 (2006) .............................................................................. 30-31
Edward Brunet, Arbitration and Constitutional Rights,

71 N.C. L. REV. 81 (1992) .......................................................................34, 37, 38
Geraldine Szott Moohr, Arbitration and the Goals of Employment

Discrimination Law, 56 WASH. & LEE L. REV. 395 (1999) .........................35, 36
Ian R. Macniel et al., AGREEMENTS, AWARDS AND REMEDIES UNDER

THE FEDERAL ARBITRATION ACT (1995) ............................................................. 23
Ian R. Macniel, AMERICAN ARBITRATION LAW: REFORM,

NATIONALIZATION, INTERNATIONALIZATION (1992) ...........................................23
Jacobus tenBroek, EQUAL UNDER LAW (1965)............................................26, 29, 33
Jean Sternlight, Compelling Arbitration Claims Under the Civil Rights
Act of 1866: What Congress Could Not Have Intended, 47 KAN. L.
REV. 273 (1999) ..................................................................................................31
Laurie Kratky Doré, Public Courts Versus Private Justice: It’s Time
to Let Some Sun Shine in on Alternative Dispute Resolution, 81
CHI.-KENT L. REV. 463, 490 (2006) ............................................................. 35-36
Mark Tushnet, The Lawyer/Judge As Republican Hero, 70 STAN. L.

REV. ONLINE 29 (2017) ................................................................................. 27-28
vii
Proceedings of the Forty-Fifth Judicial Conference of the District of

Columbia Circuit, 105 F.R.D. 251 (1984). ...................................................28, 29
Robert J. Kaczorowski, Congress’s Power to Enforce Fourteenth

Amendment Rights: Lessons from Federal Remedies the Framers
Enacted, 42 HARV. J. ON LEGIS. 187 (2005) ................................................. 25-26
Report of the Joint Committee on Reconstruction, Part IV: Florida,

Louisiana, Texas, 39th Cong., 1st Sess. (1866)..................................................31
Stephanie Brenowitz, Deadly Secrecy: The Erosion of Public
Information Under Private Justice, 19 OHIO ST. J. ON DISP. RESOL.
679, 682 (2004) ............................................................................................. 36-37
Taja-Nia Y. Henderson, Dignity Contradictions: Reconstruction As

Restoration, 92 CHI.-KENT L. REV. 1135, 1149–50 (2017)....................28, 29, 32
Terry S. Kogan, A Neo-Federalist Tale of Personal Jurisdiction, 63 S.

CAL. L. REV. 257, 313 (1990) .............................................................................28
viii
INTRODUCTION
In 1866, Congress confronted widespread efforts by the dominant white
community to exclude the newly-freed slaves from the national economy through
private contract. White supremacists had hoped to accomplish by private
agreement what they could not accomplish by public law. In response, Congress
enacted 42 U.S.C. § 1981, which gives all persons the right to sue in federal court
to protect their “enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship” as is “enjoyed by white citizens.” § 1981(a), (b).
Section 1981 made two radical changes to previous contract law. First,
Congress determined that discriminatory contracts were subject to the control of
the demos, rather than the private party with the most bargaining power.
Discrimination henceforth would not be a matter of private, even secret, choice,
but instead a matter of public concern. Second, Congress placed jurisdiction for
oversight in the federal judiciary—not the States, and certainly not other private
parties. After all, if the party with the most bargaining power could pick its own
private judge by the same discriminatory contract, then Section 1981 was a dead
letter.
Seven score and five years later, Congress passed Section 118 as part of the
Civil Rights Act of 1991. The Act states, in part, “Where appropriate and to the
extent authorized by law, the use of . . . arbitration is encouraged” to resolve civil

rights disputes. Pub. L. No. 102-166, § 118, 105 Stat. 1071, 1081 (1991). But, as
explained below, arbitration is neither appropriate nor authorized by law with
regard to claims under Section 1981.
The United States Supreme Court’s decision in Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20 (1991) (hereinafter, “Gilmer”), provides the test for
determining whether arbitration is appropriate for a statutory claim. It held that “all
statutory claims may not be appropriate for arbitration.” Id. at 26. To determine if a
statute’s claims are appropriate for arbitration, courts look to the statute’s text,
legislative history, and fundamental purposes.
The text of the 1866 Act suggests a congressional intent not to allow waiver
of judicial forum. Congress enacted Section 1981 six decades before the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., at a time of universal judicial
hostility to arbitration and in response to the failure of the quasi-arbitral
Freedmen’s Bureau tribunals. Had Congress intended to allow waiver of a judicial
forum in contravention of the prevailing norms of the time, it would have done so.
Moreover, contemporaneous statements of legislators show that the Act
intended to create federal judicial oversight, not private arbitration, of
discrimination in private contracting. Finally, arbitration would undermine the
fundamental purpose of Section 1981, which is to subject discriminatory private
2
contracting to public scrutiny, if parties could privately contract for their own
oversight.
Plaintiff and Appellant DeWitt Lambert seeks to have his Section 1981
claims for racial discrimination heard in federal court, as has been the right of all
persons in the United States since 1866. Accordingly, Mr. Lambert requests that
this court reverse its decision compelling arbitration and remand to the District
Court for trial.
JURISDICTIONAL STATEMENT
This is an appeal from the final judgment of a United States district court;
this Court has jurisdiction pursuant to 28 U.S.C. § 1291. As Plaintiff has brought
claims under federal statutes, 42 U.S.C. § 1981 and the Declaratory Judgment Act,
22 U.S.C. § 2201, the district court had jurisdiction pursuant to 28 U.S.C. § 1331.
The district court’s final order, dismissing all claims in the case, was entered on
January 8, 2018. Plaintiff filed his notice of appeal on February 7, 2018, making
the appeal timely under 28 U.S.C. § 2107(a).
The Federal Arbitration Act provides for an “immediate appeal of any ‘final
decision with respect to an arbitration,’ regardless of whether the decision is
favorable or hostile to arbitration.” Green Tree Fin. Corp.-Alabama v. Randolph,
531 U.S. 79, 86 (2000). A final decision is one that “ends the litigation on the
merits and leaves nothing more for the court to do but execute the judgment.”
3
Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)
(internal citations omitted). This includes an order dismissing an action
“notwithstanding that the dismissal was in favor of arbitration,” even if “the parties
could later return to the court to enter judgment on an arbitration award.”
Interactive Flight Techs., Inc. v. Swissair Swiss Air Transp. Co., 249 F.3d 1177,
1179 (9th Cir. 2001).
STATUTORY AUTHORITIES
42 U.S.C. § 1981
(a) Statement of Equal Rights. All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceerity of persons and property as is enjoyed by
white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other.
(b) “Make and enforce contracts defined.” For purposes of this section, the term
“make and enforce contracts” includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment. The rights protected by this section are
protected against impairment by nongovernmental discrimination and
impairment under color of State law.
Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (April 9, 1866)
An Act to protect all Persons in the United States in their Civil Rights, and furnish
the Means of their Vindication.
Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled, That all persons born in the United States and not
subject to any foreign power, excluding Indians not taxed, are hereby declared to
be citizens of the United States; and such citizens, of every race and color, without
regard to any previous condition of slavery or involuntary servitude, except as a
4
punishment for crime whereof the party shall have been duly convicted, shall have
the same right, in every State and Territory in the United States, to make and
enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and to full and equal benefit of
all laws and proceedings for the security of person and property, as is enjoyed by
white citizens, and shall be subject to like punishment, pains, and penalties, and to
none other, any law, statute, ordinance, regulation, or custom, to the contrary
notwithstanding.
Sec. 2. And be it further enacted, That any person who, under color of any law,
statute, ordinance, regulation, or custom, shall subject, or cause to be subjected,
any inhabitant of any State or Territory to the deprivation of any right secured or
protected by this act, or to different punishment, pains, or penalties on account of
such person having at any time been held in a condition of slavery or involuntary
servitude, except as a punishment for crime whereof the party shall have been duly
convicted, or by reason of his color or race, than is prescribed for the punishment
of white persons, shall be deemed guilty of a misdemeanor, and, on conviction,
shall be punished by fine not exceeding one thousand dollars, or imprisonment not
exceeding one year, or both, in the discretion of the court.
Sec. 3. And be it further enacted, That the district courts of the United States,
within their respective districts, shall have, exclusively of the courts of the several
States, cognizance of all crimes and offences committed against the provisions of
this act, and also, concurrently with the circuit courts of the United States, of all
causes, civil and criminal, affecting persons who are denied or cannot enforce in
the courts or judicial tribunals of the State or locality where they may be any of the
rights secured to them by the first section of this act; and if any suit or prosecution,
civil or criminal, has been or shall be commenced in any State court, against any
such person, for any cause whatsoever, or against any officer, civil or military, or
other person, for any arrest or imprisonment, trespasses, or wrongs done or
committed by virtue or under color of authority derived from this act or the act
establishing a Bureau for the relief of Freedmen and Refugees, and all acts
amendatory thereof, or for refusing to do any act upon the ground that it would be
inconsistent with this act, such defendant shall have the right to remove such cause
for trial to the proper district or circuit court in the manner prescribed by the “Act
relating to habeas corpus and regulating judicial proceedings in certain cases,”
approved March three, eighteen hundred and sixty-three, and all acts amendatory
thereof. The jurisdiction in civil and criminal matters hereby conferred on the
district and circuit courts of the United States shall be exercised and enforced in
conformity with the laws of the United States, so far as such laws are suitable to
5
carry the same into effect; but in all cases where such laws are not adapted to the
object, or are deficient in the provisions necessary to furnish suitable remedies and
punish offences against law, the common law, as modified and changed by the
constitution and statutes of the State wherein the court having jurisdiction of the
cause, civil or criminal, is held, so far as the same is not inconsistent with the
Constitution and laws of the United States, shall be extended to and govern said
courts in the trial and disposition of such cause, and, if of a criminal nature, in the
infliction of punishment on the party found guilty.
Sec. 4. And be it further enacted, That the district attorneys, marshals, and deputy
marshals of the United States, the commissioners appointed by the circuit and
territorial courts of the United States, with powers of arresting, imprisoning, or
bailing offenders against the laws of the United States, the officers and agents of
the Freedmen’s Bureau, and every other officer who may be specially empowered
by the President of the United States, shall be, and they are hereby, specially
authorized and required, at the expense of the United States, to institute
proceedings against all and every person who shall violate the provisions of this
act, and cause him or them to be arrested and imprisoned, or bailed, as the case
may be, for trial before such court of the United States or territorial court as by this
act has cognizance of the offence. And with a view to affording reasonable
protection to all persons in their constitutional rights of equality before the law,
without distinction of race or color, or previous condition of slavery or involuntary
servitude, except as a punishment for crime, whereof the party shall have been duly
convicted, and to the prompt discharge of the duties of this act, it shall be the duty
of the circuit courts of the United States and the superior courts of the Territories
of the United States, from time to time, to increase the number of commissioners,
so as to afford a speedy and convenient means for the arrest and examination of
persons charged with a violation of this act; and such commissioners are hereby
authorized and required to exercise and discharge all the powers and duties
conferred on them by this act, and the same duties with regard to offences created
by this act, as they are authorized by law to exercise with regard to other offences
against the laws of the United States.
Sec. 5. And be it further enacted, That it shall be the duty of all marshals and
deputy marshals to obey and execute all warrants and precepts issued under the
provisions of this act, when to them directed; and should any marshal or deputy
marshal refuse to receive such warrant or other process when tendered, or to use all
proper means diligently to execute the same, he shall, on conviction thereof, be
fined in the sum of one thousand dollars, to the use of the person upon whom the
accused is alleged to have committed the offense. And the better to enable the said
6
commissioners to execute their duties faithfully and efficiently, in conformity with

the Constitution of the United States and the requirements of this act, they are
hereby authorized and empowered, within their counties respectively, to appoint, in
writing, under their hands, any one or more suitable persons, from time to time, to
execute all such warrants and other process as may be issued by them in the lawful
performance of their respective duties; and the persons so appointed to execute any
warrant or process as aforesaid shall have authority to summon and call to their aid
the bystanders or posse comitatus of the proper county, or such portion of the land
or naval forces of the United States, or of the militia, as may be necessary to the
performance of the duty with which they are charged, and to insure a faithful
observance of the clause of the Constitution which prohibits slavery, in conformity
with the provisions of this act; and said warrants shall run and be executed by said
officers anywhere in the State or Territory within which they are issued.
Sec. 6. And be it further enacted, That any person who shall knowingly and
wilfully obstruct, hinder, or prevent any officer, or other person charged with the
execution of any warrant or process issued under the provisions of this act, or any
person or persons lawfully assisting him or them, from arresting any person for
whose apprehension such warrant or process may have been issued, or shall rescue
or attempt to rescue such person from the custody of the officer, other person or
persons, or those lawfully assisting as aforesaid, when so arrested pursuant to the
authority herein given and declared, or shall aid, abet, or assist any person so
arrested as aforesaid, directly or indirectly, to escape from the custody of the
officer or other person legally authorized as aforesaid, or shall harbor or conceal
any person for whose arrest a warrant or process shall have been issued as
aforesaid, so as to prevent his discovery and arrest after notice or knowledge of the
fact that a warrant has been issued for the apprehension of such person, shall, for
either of said offences, be subject to a fine not exceeding one thousand dollars, and
imprisonment not exceeding six months, by indictment and conviction before the
district court of the United States for the district in which said offense may have
been committed, or before the proper court of criminal jurisdiction, if committed
within any one of the organized Territories of the United States.
Sec. 7. And be it further enacted, That the district attorneys, the marshals, their
deputies, and the clerks of the said district and territorial courts shall be paid for
their services the like fees as may be allowed to them for similar services in other
cases; and in all cases where the proceedings are before a commissioner, he shall
be entitled to a fee of ten dollars in full for his services in each case, inclusive of all
services incident to such arrest and examination. The person or persons authorized
to execute the process to be issued by such commissioners for the arrest of
7
offenders against the provisions of this act shall be entitled to a fee of five dollars
for each person he or they may arrest and take before any such commissioner as
aforesaid, with such other fees as may be deemed reasonable by such
commissioner for such other additional services as may be necessarily performed
by him or them, such as attending at the examination, keeping the prisoner in
custody, and providing him with food and lodging during his detention, and until
the final determination of such commissioner, and in general for performing such
other duties as may be required in the premises; such fees to be made up in
conformity with the fees usually charged by the officers of the courts of justice
within the proper district or county, as near as may be practicable, and paid out of
the Treasury of the United States on the certificate of the judge of the district
within which the arrest is made, and to be recoverable from the defendant as part
of the judgment in case of conviction.
Sec. 8. And be it further enacted, That whenever the President of the United States
shall have reason to believe that offences have been or are likely to be committed
against the provisions of this act within any judicial district, it shall be lawful for
him, in his discretion, to direct the judge, marshal, and district attorney of such
district to attend at such place within the district, and for such time as he may
designate, for the purpose of the more speedy arrest and trial of persons charged
with a violation of this act; and it shall be the duty of every judge or other officer,
when any such requisition shall be received by him, to attend at the place and for
the time therein designated.
Sec. 9. And be it further enacted, That it shall be lawful for the President of the
United States, or such person as he may empower for that purpose, to employ such
part of the land or naval forces of the United States, or of the militia, as shall be
necessary to prevent the violation and enforce the due execution of this act.
Sec. 10. And be it further enacted, That upon all questions of law arising in any
cause under the provisions of this act a final appeal may be taken to the Supreme
Court of the United States.
Section 118 of the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 107
Where 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 disputes arising under the Acts or provisions of Federal law amended by
this title.
8
ISSUES PRESENTED
1. Whether the district court erred in interpreting Section 118 of the
Civil Rights Act of 1991 as an unqualified endorsement of arbitration in all
contexts, instead of requiring the application of the Gilmer test to the underlying
statute, Section 1981.
2. Whether claims arising under the Civil Rights Act of 1866 are
appropriate for arbitration under Gilmer, in light of Congress’s unqualified
rejection of pseudo-arbitration as a means of vindicating civil rights, its
exceptional grant of federal jurisdiction over all claims arising under the Act, and
the Act’s stated goals of guaranteeing plaintiffs access to the federal courts and
deterring discrimination.
STATEMENT OF THE CASE
Appellant DeWitt Lambert’s (“Appellant” or “Mr. Lambert”) alleged the
following in his Complaint. ER 108. He moved across the United States from
Alabama to the Bay Area, believing that the move would offer him an opportunity
to advance in his career. ER 109. When he applied for, and was offered, a job with
Defendant Tesla, Inc. (“Appellee” or “Tesla”), an automobile manufacturing
company that presents itself as progressive, he was thrilled. ER 111. He eagerly
accepted the job, signing a contract with Tesla. Included in Mr. Lambert’s contract
was an arbitration provision. ER 111.

9
Unfortunately, in the course of his employment at Tesla, Mr. Lambert was
subjected to a pattern of harassment and discrimination based on his African-
American ancestry. ER 112. Specifically, Mr. Lambert’s coworkers and
supervisors frequently referred to Mr. Lambert as a “nigger,” physically assaulted
him, and insulted him. ER 112. When Mr. Lambert complained to Tesla’s upper
management and human resources department, Tesla not only failed to stop the
harassment, but rewarded his harassers with promotions while punishing Mr.
Lambert. ER 113-114.
As a result of the above, on September 15, 2017, Mr. Lambert filed suit
against Tesla in the United States District Court for the Northern District of
California, alleging violations of 42 U.S.C. § 1981’s prohibition on race
discrimination in the making and enforcement of contracts, including in
employment. ER 108. Mr. Lambert also brought a claim under the Declaratory
Judgment Act, 28 U.S.C. § 2201, seeking a declaration by the district court that
claims brought under Section 1981 are non-arbitrable. ER 108.
On October 30, 2017, Tesla moved to dismiss Mr. Lambert’s complaint with
prejudice, or, in the alternative, to compels the matter to arbitration. ER 91. Tesla
asserted that the arbitration agreement Mr. Lambert had signed was enforceable
and not unconscionable. E.g., ER 99.
10
Opposing Tesla’s motion to dismiss, and simultaneously moving for partial
summary judgment as to his Declaratory Judgment Act Claim, Mr. Lambert argued
that the unique history of Section 1981, passed as part of the Civil Rights Act of
1866, rendered it inappropriate for arbitration under the test set forth in Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). ER 61. Specifically, Mr.
Lambert argued that the statute’s legislative history manifested an intent not to
allow waiver of a judicial forum, and that its fundamental purposes were
inconsistent with mandatory arbitration. ER 61-73.
On November 27, 2017, Tesla filed an opposition to Mr. Lambert’s motion
for partial summary judgment. ER 33. In support of its position, Tesla cited to the
Ninth Circuit’s decision in E.E.O.C. v. Luce, Forward, Hamilton & Scripps, 345
F.3d 742 (9th Cir. 2003), interpreting Section 118 of the Civil Rights Act of 1991,
which Tesla argued “encouraged” arbitration. ER 43. Mr. Lambert filed his reply
on December 4, 2017. ER 13. He argued that Section 118 does not encourage
arbitration in all cases, and that the Ninth Circuit’s decision in Luce held that
Section 118 incorporates the Gilmer analysis and requires its application to the
underlying statutes it amended. ER 21-23. Mr. Lambert then addressed mandatory
arbitration’s conflict with Section 1981’s fundamental purposes. ER 24-28.
On January 1, 2018, in a one-page order, the district court granted Tesla’s
motion to compel arbitration, and dismissed the case. ER 11. The court cited to
11
Luce, where this Circuit found Title VII claims to be arbitrable, and concluded that
Section 1981 claims are appropriate for arbitration as well. In support of this
reasoning, the court invoked Section 118’s text: “[w]here appropriate and to the
extent authorized by law . . . arbitration[ ] is encouraged to resolve disputes arising
under” the statutes amended by the 1991 Act. ER 11 (quoting 105 Stat. 1071 §
118). Looking to the second clause, it concluded that arbitration is “encouraged”
for Section 1981 claims, as that statute was amended by the 1991 Act. ER 11-12.
Finally, the court recognized that there are significant differences between Title
VII and Section 1981, but stated simply “these differences do not justify departing
from the reasoning of Luce, Forward.” ER 12.
SUMMARY OF THE ARGUMENT
The district court erred in failing to give full effect to the text of Section 118
of the Civil Rights Act of 1991, which limits arbitration to claims where it is
“appropriate” and “authorized by law.” 105 Stat. 1071 § 118. Precedent from this
and other circuits compel the conclusion that Section 118 does not operate as an
unqualified endorsement of arbitration.
Instead, Section 118 requires an application of the three-part test set forth in
Gilmer to the underlying statute. Under Gilmer, courts look to the (1) text, (2)
legislative history, and (3) fundamental purposes of a statute to determine whether
there is a congressional intent to preclude waiver of a judicial forum.
12
The text of Section 1981 does not support arbitrability of those claims. The
Civil Rights Act of 1866 was passed at a time of universal judicial hostility to
mandatory, private arbitration, and prior to the Federal Arbitration Act. Had
Congress intended to contravene the consensus at the time against waiver of a
judicial forum, it would have made this explicit. Rather than allow waiver, Section
1981 understandably places authority in the federal courts.
Second, Section 1981’s legislative history evinces a clear intent not to allow
waiver of a judicial forum. Congress’s intent is made even clearer considering the
state of affairs in the South, of which it was well aware.
Finally, the underlying purposes of the statute, direct enforcement of civil
rights through the federal courts and general deterrence of racial discrimination,
cannot be reconciled with arbitration. Indeed, the statute could not operate at all if
the same contract alleged to be discriminatory could be used to require the
aggrieved party into arbitration.
STANDARD OF REVIEW
A district court’s order compelling arbitration is reviewed de novo. See
Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 892 n.2 (9th Cir. 2002); Harden
v. Roadway Package Sys., Inc., 249 F.3d 1137, 1140 (9th Cir. 2001).
13
ARGUMENT
The district court erred in holding that Section 1981 claims are arbitrable for
two significant reasons. First, Section 118 contains the limiting language,
“appropriate and to the extent authorized by law.” 105 Stat. 1071 § 118.
Accordingly, it does not render arbitrable all claims brought under statutes
amended by the 1991 Act; instead, it compels courts to apply the test set forth in
Gilmer to the underlying statute.
Second, the district court did not apply Gilmer to the underlying statute,
Section 1981, as required under Section 118. Section 1981’s text, legislative
history, and fundamental purposes all weigh against finding arbitration
“appropriate” and “authorized by law.” The context surrounding the drafting and
enactment of Section 1981 shows that, as it was passed before the FAA, Congress
would have provided for waiver of a judicial forum had it intended to allow it.
Section 1981 is a law unlike any other civil rights statute, enacted
specifically because Congress sought to provide African American employees a
federal forum from which to escape the tendency of private contract to interfere
with their ability to enforce their rights. In addition, throughout the Act’s
legislative history, members of Congress repeatedly emphasized the importance of
access to a federal judicial forum.
14
Finally, Section 1981’s fundamental purposes cannot be squared with
arbitration. The purpose of the 1866 Act was to allow direct enforcement of civil
rights through the federal judiciary. Private, mandatory arbitration is a creature of
contract, and neither a judicial forum nor a function of the federal government.
Moreover, Section 1981 specifically guarantees the right to be free of
discrimination in the making and enforcement of contracts; a method of dispute
resolution required by an allegedly discriminatory contract cannot effectuate an
employee’s rights to be free of that discrimination.
Furthermore, arbitration’s opacity eviscerates Section 1981’s deterrent
effect. Regardless of whether a given arbitration contains a non-disclosure
agreement, arbitration hearings and records are not publicly available, precluding
effective coverage by the press. This stands in stark contrast to a federal judicial
forum, in which there is a strong presumption in favor of the public availability of
information and the corresponding deterrent effect of these public proceedings.
Comparisons of Section 1981’s fundamental purposes to those of post-
Reconstruction civil rights statutes are misguided. Most notably, unlike statutes
enforced by the Equal Employment Opportunity Commission (“EEOC”), Section
1981 is enforced solely by private individuals and not by government agencies.
15
I. THE SUPREME COURT’S DECISION IN GILMER PROVIDES THE

CORRECT TEST FOR DETERMINING WHETHER ARBITRATION
IS APPROPRIATE UNDER SECTION 1981
In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) the Supreme
Court explained that “all statutory claims may not be appropriate for arbitration.”
Id. at 26. A statutory claim is inappropriate for arbitration where an intention not to
allow waiver of a judicial forum is “discoverable in the text of [the statute], its
legislative history, or an ‘inherent conflict’ between arbitration and the [statute’s]
underlying purposes.” Id.
Section 118 of the Civil Rights Act of 1991 (“1991 Act” or “Civil Rights
Act of 1991”) provides that “where appropriate and to the extent authorized by
law” arbitration of civil rights disputes is “encouraged.” 105 Stat. 1071 § 118. In
doing so, it requires courts to apply the Gilmer test to all statutes amended under
the 1991 Act, including Section 1981.
The court below erred in finding Section 1981 claims arbitrable under
Section 118 because it failed to consider the first half of the sentence. The district
court’s approach conflicts with traditional rules of statutory interpretation, this and
other circuits’ interpretation of other parts of Section 118, and this Court’s
interpretation of Section 118’s limiting language “to the extent authorized by law.”
A. Section 118 Of The Civil Rights Act Of 1991 Encourages

Arbitration Only Where Appropriate And To The Extent Authorized
By Law
16
Section 118 encourages arbitration in the civil rights context only “where
appropriate and to the extent authorized by law.” 105 Stat. 1071 § 118. When
interpreting a statute, a court must “give significance to all of its parts.” Boise
Cascade Corp. v. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991). It should construe
the statute so as not “to make surplusage of any provision.” Nw. Forest Res.
Council v. Glickman, 82 F.3d 825, 834 (9th Cir. 1996). Here, the District Court
relied wholly on the phrase “is encouraged,” which fails to give significance to all
of Section 118’s parts. If Section 118 were a congressional approval of arbitration
of civil rights claims across the board, then “where appropriate and to the extent
authorized by law” would be surplusage.
The rule against surplusage extends with particular force to qualifying
language. Where, as here, “the language in question cuts back or qualifies other
language that sweeps very broadly, there's a particularly strong inference that the
legislature employed the qualifier to limit the more general language in some
meaningful way.” Hearn v. W. Conference of Teamsters Pension Tr. Fund, 68 F.3d
301, 304 (9th Cir. 1995).
Considering the phrase “is encouraged” in isolation also contravenes the
principle that courts should not rely upon “a single sentence or member of a
sentence, but look to the provisions of the whole law, and to its object and policy.”
John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95
17
(1993); see also Bailey v. United States, 516 U.S. 137, 145 (1995) (explaining that
courts should “consider not only the bare meaning of the word, but also its
placement and purpose in the statutory scheme.”).
Applying these principles, Section 118 “encourages” arbitration only in
limited circumstances: where authorized by law, as determined by a Gilmer
analysis of the underlying statute.
B. This And Other Circuits Recognize The Limited Scope Of Section

118
This Circuit has already given effect to the limiting language of Section 118.
In Ashbey v. Archstone Property Management, Inc., 785 F.3d 1320 (9th Cir. 2015),
this Court explicitly stated that Section 118 is not “an unfettered endorsement of
alternative dispute resolutions.” Id. at 1323. Instead, “such resolutions are
permissible only ‘where appropriate.’” Id.; see also Prudential Ins. Co. of Am. v.
Lai, 42 F.3d 1299, 1305 (9th Cir. 1994).
Other circuits have taken a similar approach. Likewise, in Skirchak v.
Dynamics Research Corp., 508 F.3d 49 (1st Cir. 2007), the First Circuit interpreted
Section 118’s phrase “where appropriate” as requiring a knowing waiver of the
right to a trial. It explained: “Under Title VII and the [Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (“ADA”)], we have applied an independent federal
scrutiny of the adequacy of the notice of waiver of judicial rights because in the
language of these statutes Congress referred to ‘appropriate’ waivers.” Id. at 58-59.
18
The Skirchak court expanded on its rationale by stating that Section 118 “expressly
cabin[s] [its] endorsement[ ] of arbitration in cases covered by those statutes by
providing that ‘[w]here appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including . . . arbitration, is encouraged.’”
Id. at 58–59 n.5 (emphasis added).
C. This Circuit Has Held That Gilmer Provides The Correct Test For
Determining Whether Arbitration Is Appropriate And
Authorized By Law
Six months before Congress enacted the Civil Rights Act of 1991, the
Supreme Court issued its decision in Gilmer. The Court held that some statutory
claims can be compelled to arbitration—but where Congress has an intent not to
allow waiver of a judicial forum, the claim is non-arbitrable. Courts must “assume
that Congress is aware of existing law when it passes legislation.” Miles v. Apex
Marine Corp., 498 U.S. 19, 32 (1990).
This Circuit held in Luce that Section 118’s limiting language is a reference
to Gilmer’s analysis: “Gilmer was decided in May 1991 and the 1991 Act was not
enacted until November of that year. During this intervening six months, Congress
surely became aware that Gilmer, and not Alexander, provided the Supreme
Court’s prevailing assessment of employment arbitration agreements.” Luce, 345
F.3d at 751-52; see also Armendariz v. Found. Health Psychcare Servs., Inc., 24
Cal. 4th 83, 96 (2000) (“[A]t the time Congress passed the 1991 Act, Gilmer was
19
the law. Congress must be presumed to have been aware of Gilmer when it used
the phrase ‘to the extent authorized by law.’”). 1
Section 118 therefore means that arbitration is encouraged when
“authorized by law” under the Gilmer analysis, not in all situations without
differentiation or independent analysis. The plain text of the statute encourages
arbitration only where “appropriate” and “to the extent authorized by law.” 105
Stat. 1071 § 118. Neither the text of the statute nor its legislative history evinces a
congressional intent to allow waiver of a judicial forum.
In conducting its analysis, this Court should apply the Gilmer test to the
underlying statute, Section 1981 as part of the Civil Rights Act of 1866, not to
Section 118. If Section 118 incorporates the Gilmer analysis, finding that
arbitration is “encouraged” or even “authorized by law” by reference to Section
118 itself defeats the purpose of the section by creating a self-referential loop in
which no real Gilmer analysis is ever conducted.
II. UNDER GILMER, SECTION 1981 CLAIMS ARE NON-

ARBITRABLE
The Gilmer test shows that claims under Section 1981 are not “appropriate”
or “authorized by law” for arbitration. To determine whether Congress has
1
Luce did not accomplish what the district court believes it did. In Luce this
Circuit focused on the question: does Section 118 preclude arbitration of Title VII
claims? It concluded that Section 118 does not preclude arbitration; but it did not
hold that Section 118 encourages arbitration.
20
manifested an intent not to allow waiver of a judicial forum, courts look to the
statute’s (1) text; (2) legislative history; and (3) fundamental purposes. 500 U.S. at
26 (“If such an intention exists, it will be discoverable in the text of the [the
statute], its legislative history, or an ‘inherent conflict’ between arbitration and the
[statute’s] underlying purpose.”).
The text of Section 1981 indicates that arbitration is not appropriate or
authorized by law for those claims. It was enacted well prior to the FAA, at a time
when arbitration was rare, and courts unanimously refused to compel parties to
participate in it. Given this context, had Congress wanted to allow out-of-court
resolution of claims, it would have made explicit an intent to allow parties to
contract out of the federal judicial forum it so exceptionally provided. Instead of
allowing arbitration, however, the text of the 1866 Act specifically affords a
federal forum.
The second prong—the legislative history—weighs against allowing
arbitration because the legislative history reveals that Congress had no intention of
allowing any waiver of a federal judicial forum. Finally, the fundamental purposes
of Section 1981 cannot be reconciled with arbitration. Comparisons to the
legislative history or fundamental purposes of Title VII and other civil rights
statutes are inappropriate, as Section 1981’s enforcement mechanisms and
purposes are unique.
21
A. Section 1981’s Text Provides For Federal Judicial Enforcement,

Rather Than Private Arbitration
The Civil Rights Act of 1866 applies, by its own terms, to “[a]ll persons
within the jurisdiction of the United States” and has been enforced throughout its
history in the courts of the United States. Civil Rights Act of 1866, ch. 31, 14 Stat.
27 (April 9, 1866) (extending rights to “all citizens” of the United States); Civil
Rights Act of 1870, ch. 114, 16 Stat. 140 (May 31, 1870) (amending the 1866 Act
to protect “[a]ll persons within the jurisdiction of the United States”). The method
of enforcement prescribed by Congress was suit brought in the federal courts: “The
district courts of the United States shall have, exclusively of the courts of the
several States, cognizance of all crimes and offences [sic] committed against the
provisions of this act. . . .” 14 Stat. 27 § 3. It made no provision for arbitration or
alternative dispute resolution.
In 1866, courts universally refused to enforce mandatory arbitration
agreements, and such agreements were therefore rare. Congress would have made
clear its intent to depart from those prevailing norms. Courts have commonly
considered whether a statute was enacted before, or after, the Federal Arbitration
Act, and whether arbitration was commonplace at the time of enactment, when
applying Gilmer. See, e.g., Gilmer, 500 U.S. at 26-33; see also Ziober v. BLB
Resources, Inc., 839 F.3d 814, 817 (9th Cir. 2016) (taking into consideration, in
challenge to arbitration of claims under Uniformed Services Employment and
22
Reemployment Rights Act, 38 U.S.C. § 4301 et seq., that the statute had been
enacted after FAA at a time when arbitration was common).
Section 1981 was enacted long before the FAA, and at a time when
arbitration agreements were uncommon: Section 1981 became law in 1866; the
FAA was not passed until 1925. In addition, at the time Section 1981 was passed,
courts broadly refused to enforce contractual agreements to resolve disputes by
private arbitration. See Ian R. Macniel, AMERICAN ARBITRATION LAW: REFORM,
NATIONALIZATION, INTERNATIONALIZATION 15 (1992); Ian R. Macniel et al., 1
FEDERAL ARBITRATION LAW: AGREEMENTS, AWARDS AND REMEDIES UNDER THE
FEDERAL ARBITRATION ACT 4:7 (1995); see generally Addison C. Burnham,
Arbitration as a Condition Precedent, 11 HARV. L. REV. 234 (1897) (advocating
reversal of trend among courts to refuse to treat participation in contracted-for
arbitration as a condition precedent to litigation). Parties who brought suit in court
instead of proceeding with alternative dispute resolution did not face dismissal in
favor of arbitration. See Macneil et al., supra at 4:7; see generally Burnham, supra
at 234. 2
2
There has been only one instance in which a pre-FAA statute was found
arbitrable: the Sherman Act, 15 U.S.C. §§ 1-7, in Mitsubishi v. Soler Chrysler-
Plymouth, 473 U.S. 614 (1985). However, the Mitsubishi decision has little
applicability here, as the Supreme Court based its reasoning largely on the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The
23
Later interpretations of the 1866 Act change nothing, as a court’s analysis of
a statute does not alter its text or legislative history. In Jones v. Alfred Mayer Co.,
392 U.S. 409 (1968), the Supreme Court considered whether claims under Section
1982, enacted along with Section 1981 as part of the 1866 Act, applied to private,
and not just governmental, actors. In finding in the affirmative, Jones relied on the
1866 Act’s legislative history. Id. at 427-436. Jones did not alter the Act; rather, it
found that the intent had been to apply the law to private actors from the time of its
enactment. Jones could also not have “amended” the 1866 Act to allow waiver of a
judicial forum, regardless of when the case was decided: the Court was never
presented with the question of an employee could waive a judicial forum for
Section 1981 claims.
B. Section 1981’s Legislative History Demonstrates Congress’s

Intent Not To Allow A Waiver Of A Judicial Forum
This Court should also look to the legislative history and fundamental
purposes of Section 1981. This is the approach endorsed, and used, by the Supreme
Court in Gilmer. There, it considered arbitration of claims under the Age
Court explained that arbitration awards in some Sherman Act cases were
enforceable only due to “concerns of international comity, respect for the
capacities of foreign and transnational tribunals, and sensitivity to the need of the
international commercial system for predictability in the resolution of disputes.”
Id. at 629. Mitusbishi’s policy concerns do not apply in this case.
24
Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”). See 500 U.S. at
26-33. Gilmer held that ADEA claims were appropriate for arbitration—but only
after taking into consideration the statute’s text, legislative history, and
fundamental purposes. Id. This Circuit has followed suit in other contexts. See
Ashbey, 785 F.3d 1320 (9th Cir. 2015) (interpreting Section 118 by looking both to
its text and legislative history).
The 1866 Act’s legislative history, unlike that of the ADEA, supports a
finding that arbitration is not appropriate or authorized by law for Section 1981
claims. In passing Section 1981, Congress went to extraordinary lengths to allow
employees to vindicate their rights in a federal court, and rejected prior efforts to
enforce civil rights through the pseudo-arbitration of the Freedmen’s Bureau
tribunals. Given this legislative history Congress could not have intended to allow
waiver of a judicial forum for Section 1981 claims.
1. Congress Went To Exceptional Lengths To Provide A

Federal Judicial Forum
Congress’s goal in passing Section 1981 was to create a statute establishing
the direct federal protection of rights, the first law of its kind. See Runyon v.
McCrary, 427 U.S. 160 (1976) (noting that the “right of individuals to bring suits
in Federal [sic] courts to redress individual acts of discrimination, including
employment discrimination[,] was first provided by” Section 1981); Robert J.
25
Kaczorowski, Congress's Power to Enforce Fourteenth Amendment Rights:
Lessons from Federal Remedies the Framers Enacted, 42 HARV. J. ON LEGIS. 187,
204 (2005) (explaining that the Civil Rights Act of 1866 “conferred jurisdiction on
the federal courts to dispense ordinary civil and criminal justice, traditionally
administered by the states.”). Congress believed “the way to implement the
Thirteenth Amendment was to protect men in their ‘civil rights and immunities’
and to do so directly through the national government.” Jacobus tenBroek, EQUAL
UNDER LAW 178 (1965) (emphasis added).
Numerous legislators emphasized the need for federal governmental action
to protect Black employees—something they would not have done if they intended
to allow a waiver of it. For example, Representative James Wilson, speaking in
favor of the 1866 Act, rose to say, “The power is with us to provide the necessary
protective remedies .... They must be provided by the government of the United
States, whose duty it is to protect the citizen in return for the allegiance he owes to
the Government.” Cong. Globe, 39th Cong., 1st Sess. 1294 (1866). Elsewhere, he
explained:
If citizens of the United States, as such, are entitled to possess and

enjoy the great fundamental civil rights which it is the true office of
Government to protect,” then Congress “must of necessity be clothed
with the power to insure to each and every citizen these things which
belong to him as a constituent member of the great national family.”
26
Id. at 1118. Important to Congress was not only a federal remedy, but a federal
judicial remedy. Likewise, Senator John Sherman remarked, “To say that a man is
a freeman and yet is not able to assert and maintain his right in a court of justice is
a negation of terms.” Cong. Globe, 39th Cong., 1st Sess. 41 (1866) (statement of
Sen. Sherman). Similarly, Representative Eli Thayer emphasized the significance
of entrusting enforcement to the federal judiciary, allowing plaintiffs to vindicate
their rights “through the quiet, dignified, firm, and constitutional forms of judicial
procedure.” Cong. Globe, 39th Cong., 1st Sess. 1153 (1866) (statement of Rep.
Thayer) (emphasis added). Supporters of the Act explained that they desired a
federal forum in part because “courts do not consist of judges alone. It will be the
duty of the judges, district attorneys, marshals, clerks, grand and petit juries, and
the bailiffs of the courts, with the records to accompany each other in these
remarkable visitations and perambulations.” Id. at 1271 (statement of Rep. Kerr).
2. Congress Provided A Federal Judicial Forum Because Of

The Failures Of The Freedmen’s Bureau Tribunals
Congress enacted Section 1981 because it viewed as a failure attempts to
enforce civil rights without the federal court system. One of those alternatives was
the Freedmen’s Bureau tribunals, which are analogous to modern arbitration. Legal
experts in all manner of fields have described the Freedmen’s Bureau tribunals as
arbitration or pseudo-arbitration. Mark Tushnet, The Lawyer/Judge As Republican
Hero, 70 STAN. L. REV. ONLINE 29 (2017) (discussing Freedmen’s Bureau

27
tribunals in the context of arbitration); Taja-Nia Y. Henderson, Dignity
Contradictions: Reconstruction As Restoration, 92 CHI.-KENT L. REV. 1135, 1149–
50 (2017) (Freedmen’s Bureau agents served as “arbiters of labor fairness”); Adjoa
Artis Aiyetoro, Truth Matters: A Call for the American Bar Association to
Acknowledge Its Past and Make Reparations to African Descendants, 18 GEO.
MASON U. CIV. RTS. L.J. 51, 65 (2007) (stating that Freedmen’s Bureau tribunals
were “boards of arbitration”); Proceedings of the Forty-Fifth Judicial Conference
of the District of Columbia Circuit, 105 F.R.D. 251, 291 (1984) (statement of
Professor Anthony G. Amsterdam) (describing Freedmen’s Bureau “arbitration
tribunals”).
Within one year after the conclusion of the Civil War, Congress already
realized that it needed a new approach to appropriately protect the civil rights of
Black Americans in the South. Professor Terry Kogan has explained that “as a
result of abuses in the South, particularly the Blacks Codes and the early failures of
the Freedmen's Bureau, Congress saw the need for specific legislation aimed at
protecting the civil rights of the new freedmen. The result was the Civil Rights Act
of 1866, the forerunner of the fourteenth amendment [sic].” Terry S. Kogan, A
Neo-Federalist Tale of Personal Jurisdiction, 63 S. CAL. L. REV. 257, 313 (1990).
Prominent among the Bureau’s enforcement tools had been pseudo-
arbitration tribunals, which it frequently ‘contracted out’ to private actors—
28
rendering the tribunals even more analogous to modern day, private arbitration.
Where scholars have explored the unfairness of the tribunals, many have attributed
the tribunals’ problems to the use of private actors. See, e.g., Henderson, supra at
1149–50 (“In jurisdictions where [local] whites were employed as Bureau agents
[mediating disputes], freedmen suffered.”). During a judicial conference of the
District of Columbia Circuit, Professor Anthony G. Amsterdam of New York
University Law School, drawing from the work of Jerold Auerbach, cited the
Bureau tribunals as an example where arbitration “finds and leaves the parties with
all of the chips in the hand of the stronger.” Proceedings of the Forty-Fifth Judicial
Conference of the District of Columbia Circuit, 105 F.R.D. at 291 (statement of
Professor Anthony G. Amsterdam). Congress was well aware of these deficiencies,
as it received regular reports from the military authorities charged with governing
the states that had been in rebellion. A common sentiment was that “more explicit
statutory guarantees were. . . necessary” to ensure “something more than
parchment rights.” tenBroek, supra at 175.
To achieve this goal, Congress advanced the Civil Rights Act of 1866.
Congress insisted that the federal government act directly upon and on behalf of
the citizens of the United States to enforce civil rights. That federal intervention
was through the courts. At the time, using the federal courts in this way was
29
exceptional: the first general grant of federal question jurisdiction came nearly ten
years later, in 1875. Judiciary Act of 1875, 18 Stat. 470 (1875).
Conservative members of Congress immediately objected. “[A]ll subjects
embraced in [Section 1981],” contended one Senator, were “subjects solely of
State cognizance; and unless you can show that the States have surrendered the
control over them to the Federal Government [sic], they still belong to the States,
exclusively.” Cong. Globe, 39th Cong., 1st Sess. 479 (1866) (statement of Sen.
Saulsbury). Another called the use of the federal judiciary to enforce the Act
“enormous” and “oppressive,” objecting that it would allow federal jurisdiction
over a “transaction that has transpired wholly within the state.” Id. at 598-99
(statement of Sen. Davis).
3. Congress Could Not Have Intended To Allow A Waiver Of

A Federal Judicial Forum
Congress took up the 1866 Act precisely due to concerns over the use of
private contracts to strip employees of their rights. Allowing employees to waive
their right to a federal forum would have defeated the entire bill. Reports to
Congress emphasized again and again the inequality in bargaining power between
employees and employers. Danielle Tarantolo, From Employment to Contract:
Section 1981 and Antidiscrimination Law for the Independent Contractor
Workforce, 116 YALE L.J. 170, 186 (2006) (“As the Reconstruction Congress was
30
well aware, intolerable labor conditions prevailed throughout the South, posing
severe barriers for freed slaves who attempted to sell their labor for wages . . . .”).
Reports to Congress indicated that unfair contracts threatened to make Black
employees “much worse off than when they were slaves,” and that this could only
be prevented through federal intervention. Report of the Joint Committee on
Reconstruction, Part IV: Florida, Louisiana, Texas 125, 39th Cong., 1st Sess.
(1866) (testimony of Major General Christopher C. Andrews).
Congress knew that allowing waiver of a judicial forum through private
contract would have jeopardized enforcement of the rights it sought to extend to
Black Americans; allowing for private persons to preside over disputes would
efface every right set forth in the bill. As one arbitration scholar has explained:
Allowing the arbitration clauses would have given former slave

owners an ideal tool with which to ‘gut’ [Section 1981]. By naming
each other as arbitrators, by imposing high arbitration fees, by failing
to issue written decisions, by ensuring the results were binding and
subject to virtually no appeal, and perhaps even by limiting the
available relief, former slave owners could have eluded federal court
review and once again used their own private form of ‘justice’ to
maintain their superior position.
Jean Sternlight, Compelling Arbitration Claims Under the Civil Rights Act of
1866: What Congress Could Not Have Intended, 47 KAN. L. REV. 273, 282 (1999).
The accuracy of Sternlight’s analysis is borne out by history: when the Freedmen’s
Bureau contracted out responsibilities to non-government employees, or when its
31
tribunals incorporated representatives of local whites, Black employees suffered.
See, e.g., Henderson, supra at 1149–50 (2017).
C. Section 1981’s Fundamental Purposes Are Incompatible With

Mandatory Arbitration
Section 1981’s fundamental purposes cannot be squared with using
mandatory private arbitration as a mechanism of enforcement. There are two
significant conflicts: first, arbitration conflicts with the intent of Congress to
enforce Section 1981 directly through the federal courts, and in particular through
the federal judiciary; second, Section 1981 cannot achieve its goal of deterrence if
claims under it can be compelled to arbitration.
As the use of arbitration agreements grows, these problems pose an
existential risk for the efficacy of deterrence. As of 2017, at least 55% of workers
in the United States are subject to arbitration agreements with their employer. E.g.,
Alexander J.S. Colvin, ECON. POL. INST., The growing use of mandatory
arbitration: Access to the courts is now barred for more than 60 million American
workers 1 (2017).
1. Congress Enacted Section 1981 For The Explicit Purpose

Of Affording A Federal Judicial Forum
Mandatory arbitration is, plainly, not a federal judicial forum—in fact, it is
neither federal, nor a judicial forum. This cannot be reconciled with the main
reason behind the enactment of Section 1981: to afford a federal judicial forum to
employees faced with racial discrimination. The 1866 Act “guarantee[d] access to
32
the judiciary as the normal means of maintaining rights,” including those rights set
forth in Section 1981. tenBroek, supra at 178.
Congress’s goal in passing Section 1981 was to create a statute establishing
the direct federal protection of rights, the first law of its kind. See Runyon v.
McCrary, 427 U.S. 160 (1976) (noting that the “right of individuals to bring suits
in Federal courts to redress individual acts of discrimination, including
employment discrimination[,] was first provided by” Section 1981).
In other words, in passing the 1866 Act, for the first time in American
history Congress “nationalized” the civil rights of American citizens. See, e.g.,
tenBroek, supra at 178. Its goal was to “protect men in their ‘civil rights and
immunities,’ and to do so directly through the national government,” and
specifically through the federal courts. Id. In fact, “the federal government alone
was to be the agency of enforcement. Thus was effected a complete nationalization
of the civil or natural rights of persons.” Id. at 179 (emphasis added).
This cannot be reconciled with the nature of mandatory, private arbitration,
which has no accountability to the public. The very essence of arbitration is to
allow resolution of disputes in a private forum. Arbitration’s non-governmental
nature means that it has neither the ability to enforce general injunctions backed by
the force of the federal government, nor any marshals, or clerks, or juries, or
bailiffs. See Ferguson v. Corinthian Colleges, Inc., 733 F.3d 928, 937 (9th Cir.
33
2013) (endorsing the argument that an arbitrator may only issue an injunction if the
arbitration agreement allows for such relief). Unlike the federal courts, arbitrators
derive their power from—and their powers are limited by—a contract, not the
United States Constitution.
Moreover, mandatory arbitration of Section 1981 claims would undo the
1866 Act’s remarkable achievement: allowing employees to seek the direct
intervention of the federal government when they face discrimination or
oppression in private contract. Instead, private arbitration eliminates any role for
the federal government in enforcing those statutory rights—in direct conflict with
the intent of Congress. Congress envisioned the enforcement of Section 1981
through “the quiet, dignified, firm, and constitutional forms of judicial procedure.”
Cong. Globe, 39th Cong., 1st Sess. 1153 (1866) (statement of Rep. Thayer).
Instead, arbitration provides for resolution of disputes outside of the restrictions of
established, substantive law. Arbitrators “decide disputes based on flexible
conglomerations of law, equity, practicalities, and applicable norms of standards.”
Amy J. Schmitz, Untangling the Privacy Paradox in Arbitration, U. KAN. L. REV.
1211, 1216 (2006); see also Edward Brunet, Arrbitration and Constitutional
Rights, 71 N.C. L. REV. 81, 85 (1992) (explaining that formal law has a
“subordinate role” in arbitration).
34
2. Arbitration Interferes With Section 1981’s Goal Of

Deterring Discrimination
Among the purposes of Section 1981 is to “serve[ ] as a deterrent to
employment discrimination.” See, e.g., Carroll v. Gen. Accident Ins. Co. of Am.,
891 F.2d 1174, 1176 (5th Cir. 1990). Deterrence under Section 1981 cannot be
achieved through arbitration, for several reasons: (1) arbitration interferes with
public awareness of discrimination claims; (2) even when proceedings become
public, lack of written awards in arbitration prevents potential violators from
understanding the facts and nature of previous cases; and (3) arbitration outcomes
lack the force, power, and prestige of federal enforcement.
There can be no deterrence without “public knowledge of disputes and their
disposition.” Geraldine Szott Moohr, Arbitration and the Goals of Employment
Discrimination Law, 56 WASH. & LEE L. REV. 395, 431 (1999). This is because
“[p]otential violators can appreciate the threat of sanctions only when they learn
that similarly situated actors have been punished.” Id. This cannot happen in
arbitration.
When arbitrators issue written awards, they are not required by law to be
published, and in fact are generally not published. Laurie Kratky Doré, Public
Courts Versus Private Justice: It's Time to Let Some Sun Shine in on Alternative
Dispute Resolution, 81 CHI.-KENT L. REV. 463, 490 (2006). Every other element of
arbitration is similarly opaque:
35
No open docket notifies the public or the media of the filing of an

arbitration claim or the existence of the dispute . . . . Parties cannot
share, and the public cannot access, evidence, testimony, briefs,
motions, and other information disclosed . . . . [T]he public cannot
attend arbitral hearings, which are generally only open to participants
and their representatives. Absent party agreement, the forum makes
no transcript of the proceedings.
Id. at 484-486; see also Moohr, supra at 402.
By contrast, the federal judiciary exercises a strong presumption in favor of
public access to hearings and transcripts: “It is clear that the courts of this country
recognize a general right to inspect and copy public records and documents,
including judicial records and documents.” Nixon v. Warner Comms., Inc., 435
U.S. 589, 597 (1978); see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1135 (9th Cir. 2003) (“[W]e start with a strong presumption in favor of
access to court records.”). This rule exists in part to promote “the public’s
understanding of the judicial process of significant public events.” Valley Broad.
Co. v. U.S. Dist. Court—D. Nev., 798 F.2d 1289, 1294 (9th Cir. 1986). As a result,
journalists can report on judicial proceedings and their outcomes, and potential
defendants are alerted to the consequences of racial discrimination.
Because arbitrations are secret, parties are not aware of outcomes, and
journalists do not report even egregious discrimination. Stephanie Brenowitz,
Deadly Secrecy: The Erosion of Public Information Under Private Justice, 19
OHIO ST. J. ON DISP. RESOL. 679, 682 (2004) (“These private mechanisms are often
36
intended to avoid publicity, which they easily accomplish because the disputes are
never entered onto a court docket; they are unlikely ever to come to the attention of
the press or consumer advocates, who serve as the public's watchdogs.”).
Arbitration also undermines the deterrent function of Section 1981 because
arbitrators are not required to issue reasoned opinions or indicate whether they
have awarded punitive damages. Even when arbitrators do issue written awards,
they are often brief and barely reasoned in comparison to judicial decisions. See
Brunet, supra at 85 (“The typical arbitration concludes with a terse, non-
explanatory written award that is not disclosed to the public.”).
Effective deterrence requires potential defendants to be aware of the
repercussions of violating the law, including what facts give rise to what penalties.
When arbitrators do not issue detailed, written awards, non-parties to the
arbitration will have no ability to determine liability by comparing their potential
violations to those committed by the defendant.
Though regulated, the vast majority of rules governing arbitration are set by
the private corporations that provide arbitration services. For example, some
arbitration services require the arbitrators they hire to issue written awards;
however, there is no legal requirement that arbitrators in fact do so. The protections
in arbitral rules are subject to change at the whim of the arbitral service and, by
extension, the private parties who pay their fees.
37
Finally, arbitration is necessarily non-governmental in nature, weakening
both specific deterrence—i.e., preventing the same actor from repeating the same
behavior—and general deterrence. Federal courts speak with the power of the
federal government; they derive their power from that of the state. Moohr, supra at
401 (“The judicial branch definitively applies coercive state power to issue
judgment in a visible, unbiased, accountable, and rationalized manner.”). The state
power behind courts enhances the deterrent effect of dispute outcomes in judicial
forums. Id. at 400 (“[J]udicial decisions, which speak with the authority of the
state, provide general deterrence of future violators.”).
3. Analogies To Other Civil Rights Statutes Are Inappropriate

In considering the fundamental purposes of Section 1981, this Court should
not rely on the analysis of statutes enforced by EEOC. Section 1981’s provision of
a federal judicial forum was unique in a variety of ways. As a result, Gilmer’s
reasoning as to the ADEA, does not apply here.
Unlike every other civil rights claim subject to arbitration, Section 1981 was
enacted at a time when mandatory arbitration was flatly rejected by the courts. See,
e.g., Home Ins. Co. of New York v. Morse, 87 U.S. 445, 450 (1874) (stating that
“[t]here is no sound principle upon which [arbitration agreements] can be
specifically enforced”). In addition, Congress specifically provided a judicial
forum for claims under the 1866 Act, at a time when general federal question
38
jurisdiction did not exist—a significant point of contention in the debates over the
bill. It would not have taken the extraordinary step of expanding federal court
jurisdiction, only to undercut it by allowing mandatory, out-of-court resolution.
This stands in contrast to the ADEA and every other civil rights statute that
has been compelled to arbitration, which were all enacted well after the FAA and
at a time when general federal question jurisdiction had been long established and
was uncontroversial.
Moreover, Gilmer’s fundamental purposes analysis relied on the role the
EEOC played in enforcing the ADEA, a role that it does not play for Section 1981.
Congress desired a “flexible approach to the resolution of claims” under the
ADEA: the EEOC “is directed to pursue ‘informal methods of conciliation,
conference, and persuasion.” 500 U.S. at 29. As a result, the Court concluded that
“out-of-court dispute resolution, such as arbitration, is consistent with the statutory
scheme established by Congress.” Id. The same reasoning applies to Title VII, and
all other civil rights statutes found to be appropriate for arbitration, but not to
Section 1981—Section 1981 involves no enforcement by any federal agency and
provides for no kind of alternative dispute resolution.
Section 1981’s method of achieving deterrence is also distinguishable:
because the EEOC itself can bring claims, and is not bound by arbitration, statutes
such as Title VII and the ADEA retain their deterrent effect regardless of whether
39
individual plaintiffs are compelled to arbitration. Furthermore, like federal courts,
and unlike arbitrators, the EEOC speaks with the voice of the state and the power
of the federal government; the enforcement role of the federal government beyond
the courts enhances deterrence of future violations, whether or not private parties
are able to vindicate their claims in public or not.
For example, Gilmer rejected the argument that arbitration interfered with
the ADEA’s goal of deterrence largely due to the ability of the EEOC to enforce
the law:
An individual ADEA claimant subject to an arbitration agreement will

still be free to file a charge with the EEOC, even though the claimant
is not able to institute a private judicial action. Indeed, Gilmer filed a
charge with the EEOC in this case. In any event, the EEOC's role in
combating age discrimination is not dependent on the filing of a
charge; the agency may receive information concerning alleged
violations of the ADEA “from any source,” and it has independent
authority to investigate age discrimination.
Id. at 29. Gilmer observed that the EEOC could file in court outside of the bounds
of arbitration and could publicly enforce statutes regardless of individual
arbitration agreement. Not so here. The EEOC does not enforce Section 1981—
wronged employees cannot file a Section 1981 charge with the agency, and the
EEOC cannot bring suit under Section 1981. If this Court were to rule that Section
1981 claims are subject to arbitration, there would be no federal enforcement of
this statute where an arbitration agreement exists, contrary to its purposes and the
intent of Congress.
40
Gilmer also considered other instances in which statutes enforced by
administrative agencies had been compelled to arbitration, such as the Securities
Act of 1933 and the Securities Exchange Act of 1934. Id. Parallel enforcement of a
statutory claim by an administrative agency supports a finding that the claim can
be compelled to arbitration. But the converse must be true, as well. When there is
no agency involvement, such as under Section 1981, then individual plaintiffs
should have the power to enforce their claims in court. See, e.g., Price v. Pelka,
690 F.2d 98, 101 (6th Cir. 1982) (noting that it is private parties who enforce
Section 1981). Moreover, if Section 1981 plaintiffs can be compelled to arbitrate
their claims, no agency can take up their cause and file on their behalf in court.
Gilmer requires that courts consider the fundamental purposes of each
statute, and how arbitration relates to those purposes. Arbitration is not appropriate
or authorized by law for Section 1981 merely because other statutes, vastly
different from the one at issue, have purposes compatible with the arbitration of
claims arising under those other statutes.
CONCLUSION
For the foregoing reasons, plaintiff requests this Court to reverse the
judgment of the district court and remand the case for trial, and hold that claims
under 42 U.S.C. § 1981 are not appropriate or authorized by law for arbitration.
[signature page follows]
41
Date: May 9, 2018
CALIFORNIA CIVIL RIGHTS LAW GROUP

Lawrence A. Organ
Attorneys for Appellant DeWitt Lambert
42
STATEMENT OF RELATED CASES
Appellant is not presently aware of any related cases presently before this
court.
Date: May 9, 2018

Lawrence A. Organ

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 12,300 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionately spaced typeface, Times New Roman
14-point font, using Microsoft Word 2016.
Date: May 9, 2018

Lawrence A. Organ

CERTIFICATE OF SERVICE
I hereby certify that on May 9, 2018, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Date: May 9, 2018

Lawrence A. Organ

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Case: 18-15203, 05/09/2018, ID: 10867641, DktEntry: 8, Page 1 of 54

IN THE UNITED STATES COURT OF APPEALS

TESLA, INC., DBA TESLA MOTORS, INC.

On Appeal from the United States District Court

APPELLANT’S OPENING BRIEF

Lawrence A. Organ (SBN 175503)

Attorneys for Appellant

CORPORATE DISCLOSURE STATEMENT

Appellant is a natural person. Accordingly, he is not required to file any

corporate disclosure statement pursuant to Federal Rule of Appellate Procedure

Date: May 9, 2018

California Civil Rights Law Group

/s/ Lawrence A. Organ

Attorney for Appellant

JURISDICTIONAL STATEMENT ..........................................................................3

STATUTORY AUTHORITIES ................................................................................4

STATEMENT OF THE CASE ..................................................................................9

SUMMARY OF THE ARGUMENT ......................................................................12

STANDARD OF REVIEW .....................................................................................13

I. The Supreme Court’s Decision in Gilmer Provides the Correct Test

A. Section 118 Of The Civil Rights Act Of 1991 Encourages

B. This And Other Circuits Recognize The Limited Scope Of

II. Under Gilmer, Section 1981 Claims are Non-Arbitrable ...................20

A. Section 1981’s Text Provides For Federal Judicial

B. Section 1981’s Legislative History Demonstrates Congress’s

C. Section 1981’s Fundamental Purposes Are Incompatible With

STATEMENT OF RELATED CASES

Armendariz v. Found. Health Psychcare Servs., Inc.,

Digital Equipment Corp. v. Desktop Direct, Inc.,

Ferguson v. Corinthian Colleges, Inc.,

Foltz v. State Farm Mut. Auto. Ins. Co.,

Gilmer v. Interstate/Johnson Lane Corp.,

Green Tree Fin. Corp.-Alabama v. Randolph,

Harden v. Roadway Package Sys., Inc.,

Hearn v. W. Conference of Teamsters Pension Tr. Fund,

Interactive Flight Techs., Inc. v. Swissair Swiss Air Transp. Co.,

Jones v. Alfred Mayer Co.,

Miles v. Apex Marine Corp.,

Prudential Ins. Co. of Am. v. Lai,

Valley Broad. Co. v. U.S. Dist. Court—D. Nev.,

Ziober v. BLB Resources, Inc.,

28 U.S.C. § 1291 ........................................................................................................3

28 U.S.C. § 2107 ........................................................................................................3

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ...................................18

Federal Arbitration Act, 9 U.S.C. § 1 et seq. .........................................................2, 8

Judiciary Act of 1875, 18 Stat. 470 (1875) ..............................................................30

Uniformed Services Employment and Reemployment Rights Act, 38

Addison C. Burnham, Arbitration as a Condition Precedent, 11

Alexander J.S. Colvin, ECON. POL. INST, The growing use of

Amy J. Schmitz, Untangling the Privacy Paradox in Arbitration, U.

Edward Brunet, Arbitration and Constitutional Rights,

Geraldine Szott Moohr, Arbitration and the Goals of Employment

Ian R. Macniel et al., AGREEMENTS, AWARDS AND REMEDIES UNDER

Ian R. Macniel, AMERICAN ARBITRATION LAW: REFORM,

Mark Tushnet, The Lawyer/Judge As Republican Hero, 70 STAN. L.

Proceedings of the Forty-Fifth Judicial Conference of the District of

Robert J. Kaczorowski, Congress’s Power to Enforce Fourteenth

Report of the Joint Committee on Reconstruction, Part IV: Florida,

Taja-Nia Y. Henderson, Dignity Contradictions: Reconstruction As

Terry S. Kogan, A Neo-Federalist Tale of Personal Jurisdiction, 63 S.