Determining whether an air carrier employee's AIR21 discrimination complaint can be subject to a pre-dispute arbitration provision

QUESTIONS PRESENTED Section 1 of the Federal Arbitration Act (“FAA”) includes an exception which provides that: “... but nothing herein contained shall apply to 5 contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Robert Steven Mawhinney (“RSMawhinney”) and American Airlines, Inc., (“AA”) entered into a Settlement Agreement and Release, on December 17, 2002 (““SAgreement”); where the primary intent was to re-hire RSMawhinney as an employee of AA, in : exchange for the dismissal of a Lawsuit in the Superior Court, in San Diego, California, and the dismissal of a Case before the U.S. Department of Labor (“DOL”), under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (““AIR21”). AA and the lower courts attempt to proclaim that a provision within the SAgreement triggers the arbitration of RSMawhinney’s second AIR21 complaint; and that that was the primary intent of . the SAgreement. AIR21 provides for the protection, and remedy, from discrimination of an air carrier employee in the performance of an employee’s duties. ‘ The questions presented are: 1. Did the Ninth Circuit err in determining that ; the “DOL’s independent interest in ; Mawhinney’s AIR21 discrimination and retaliation complaint ... ceased once its investigation concluded with a finding of no * violation?” , i} . ; 2. Did the Ninth Circuit err in determining that a Statutory Federal Regulation (29 C.F.R. § : 1979.111(e)), a rule that was not accepted, ordained, or published until March 21, 2003, (68 FR 14107), applies to the SAgreement which was conceived on December 17, 2002? 8. Did the Ninth Circuit, and District Court, err . in determining that RSMawhinney’s AIR21 discrimination complaint could lawfully be the subject of a pre-dispute arbitration provision, within the SAgreement, that did not include AIR21 within the provision? ii