FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN J. WALSH, Secretary of 

Labor, United States Department of 

Labor,

Plaintiff-Appellee,

v.

ARIZONA LOGISTICS, INC., DBA 

Diligent Delivery Systems, an 

Arizona corporation; PARTS 

AUTHORITY ARIZONA LLC, an 

Arizona limited liability company,

Defendants,

and

LARRY BROWNE,

Defendant-Appellant.

No. 20-15765

D.C. No.

2:16-cv-04499-

DLR

OPINION

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Argued and Submitted February 5, 2021

Phoenix, Arizona

Filed May 18, 2021
2 WALSH V. BROWNE

Before: William A. Fletcher, Eric D. Miller, and

Danielle J. Hunsaker, Circuit Judges.

Opinion by Judge Hunsaker

SUMMARY*

Arbitration

The panel affirmed the district court’s denial of an 

alleged employer’s motion to compel arbitration, arising 

from the Secretary of Labor’s Fair Labor Standards Act 

(“FLSA”) enforcement action that sought relief on behalf of 

one party to a private arbitration agreement.

The panel held that although the Federal Arbitration Act 

favored arbitration agreements, the Supreme Court’s 

decision in EEOC v. Waffle House, Inc., 534 U.S. 279, 289 

(2002) (holding that the FAA addresses enforceability only 

as to the parties to the arbitration agreement), dictated that 

the Secretary could not be compelled to arbitrate this case, 

even if the employees had agreed to arbitration. As in Waffle 

House, the remedial statute at issue here – Sections 16(c) & 

17 of the FLSA – unambiguously authorized the Secretary 

to obtain monetary relief on behalf of specific aggrieved 

employees. There was nothing in either section suggesting 

that an arbitration agreement between the parties to the 

underlying employment relationship impacted the 

Secretary’s enforcement power. Also, there was no dispute 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
WALSH V. BROWNE 3

that, like the EEOC in Waffle House, the Secretary was not 

a party to the arbitration agreement between the alleged 

employer and the employee delivery drivers.

COUNSEL

Christopher M. Mason (argued) and John J. Egbert, Jennings 

Strouss & Salmon PLC, Phoenix, Arizona; Kevin H. George, 

Kevin H. George & Associates PC, Houston, Texas; for 

Defendant-Appellant.

Shelley E. Trautman (argued), Attorney; Rachel Goldberg, 

Counsel for Appellate Litigation; Jennifer S. Brand, 

Associate Solicitor; Kate S. O’Scannlain, Solicitor of Labor; 

Office of the Solicitor, United States Department of Labor, 

Washington, D.C.; for Plaintiff-Appellee.

OPINION

HUNSAKER, Circuit Judge:

The question before us is whether a private arbitration 

agreement binds the Secretary of Labor when bringing a Fair 

Labor Standards Act (FLSA) enforcement action that seeks 

relief on behalf of one party to the arbitration agreement 

against the other party to that agreement. We conclude that 

despite the Federal Arbitration Act’s (FAA) policy favoring 

arbitration agreements, the Supreme Court’s decision in 

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), requires 

us to answer this question in the negative. Therefore, we 

affirm the district court’s denial of the alleged employer’s 

motion to compel arbitration.
4 WALSH V. BROWNE

I. BACKGROUND

The Department of Labor brought an enforcement 

against Larry Browne and his companies Arizona Logistics 

Inc., d/b/a Diligent Delivery Systems, and Parts Authority 

Arizona LLC. Only Browne is party to this appeal. The 

Secretary alleged that Browne and his entities violated the 

FLSA’s minimum wage, overtime, record-keeping, and antiretaliation requirements by misclassifying delivery drivers 

as independent contractors rather than employees.1 Browne 

moved to compel arbitration of the Secretary’s enforcement 

action based on arbitration agreements that he and his 

entities entered into with the delivery drivers. The district 

court denied Browne’s motion, concluding that the Secretary 

cannot be compelled to arbitrate based on the Supreme 

Court’s decision in Waffle House. Browne timely appealed,

and we have jurisdiction under 9 U.S.C. § 16(a)(1)(C).

II. DISCUSSION

We review the denial of a motion to compel arbitration 

de novo. Blair v. Rent-A-Center, Inc., 928 F.3d 819, 824 (9th 

Cir. 2019).

Parties who agree to resolve their disputes through 

arbitration can be compelled to follow through with that 

agreement. The FAA provides that arbitration agreements 

“shall be valid, irrevocable, and enforceable, save upon such 

grounds as exist at law or in equity for the revocation of any 

contract.” 9 U.S.C. § 2. But the FAA addresses 

1 “Employment contracts, except for those covering workers 

engaged in transportation, are covered by the FAA.” Waffle House, 534 

U.S. at 289 (emphasis added). Whether this exception to the FAA applies 

in this case was not raised on appeal, and we express no view on this 

issue.
WALSH V. BROWNE 5

enforceability only as to the parties to the arbitration 

agreement. Waffle House, 534 U.S. at 289. It does not 

provide that agreements to arbitrate are enforceable against 

nonparties. And of particular importance here, it does not 

address whether a private agreement to arbitrate is 

enforceable against a government actor that brings an 

enforcement action to vindicate the rights of a party to the 

arbitration agreement. Id. The Supreme Court, however, 

directly addressed this issue in Waffle House.

In that case, the Equal Employment Opportunity 

Commission (EEOC) brought an enforcement action against 

Waffle House after it fired an employee who suffered a 

seizure at work. Id. at 283–84. The EEOC brought an antidiscrimination enforcement action on behalf of both the 

public interest and the terminated employee—who was not 

a party to the action—and sought injunctive relief and 

employee-specific monetary relief. Id. Waffle House moved 

to compel arbitration of the EEOC’s enforcement action 

because it had an arbitration agreement with the terminated 

employee who was the subject of the action. Id. at 284.

The Court ruled against Waffle House, holding that the 

EEOC could not be compelled to arbitrate. Construing the 

remedial statute at issue, the Court noted that the terminated 

employee had no authority to control the litigation even 

though the EEOC sought monetary relief on his behalf. Id. 

at 291. Rather, the EEOC was the “master of its own case,” 

id., and the statute “unambiguously authorize[d] [the EEOC] 

to proceed in a judicial forum,” id. at 292. The Court further 

reiterated its oft-repeated direction that arbitration “is a 

matter of consent, not coercion.” Id. at 294 (internal 

quotation marks and citation omitted). The EEOC was not 

party to Waffle House’s arbitration agreement, and it was not 

bound by the agreement because the FAA “does not require
6 WALSH V. BROWNE

parties to arbitrate when they have not agreed to do so.” Id.at 

293 (internal quotation marks and citation omitted).

This same reasoning dictates that the Secretary cannot be 

compelled to arbitrate this case. As in Waffle House, the 

remedial statute at issue here unambiguously authorizes the 

Secretary to obtain monetary relief on behalf of specific 

aggrieved employees. Section 16(c) of the FLSA authorizes 

the Secretary to “bring an action in any court of competent 

jurisdiction to recover the amount of unpaid minimum wages 

or overtime compensation and an equal amount as liquidated 

damages” for any party named in the complaint. 29 U.S.C. 

§ 216(c); Donovan v. Univ. of Texas at El Paso, 643 F.2d 

1201, 1204 (5th Cir. 1981). Any money the Secretary 

recovers on behalf of a specific employee “shall be held in a 

special deposit account and shall be paid, on order of the 

Secretary of Labor, directly to the employee or employees 

affected.” 29 U.S.C. § 216(c). Section 17 of the FLSA 

authorizes the Secretary “to seek broad injunctive relief as 

well as back wages for all affected employees.”2 Donovan, 

643 F.2d at 1204; 29 U.S.C. § 217. Like the EEOC’s scope 

of authority, the Secretary can seek relief under both 

sections, see Reich v. Tiller Helicopter Servs., Inc., 8 F.3d 

1018, 1033 n.11 (5th Cir. 1993), and there is nothing in 

either section suggesting that an arbitration agreement 

between the parties to the underlying employment 

relationship impacts the Secretary’s enforcement power. See 

Waffle House, 534 U.S. at 288.

2 In Waffle House, neither the majority nor the dissent questioned

the EEOC’s ability to seek broad-based injunctive relief in judicial 

proceedings despite the employee’s arbitration agreement. 534 U.S. 

at 305 (Thomas, J., dissenting). And in this case, it appears that Browne 

contests only the Secretary’s authority to seek monetary relief under 

Section 16(c). Thus, this case largely turns on Section 16(c).
WALSH V. BROWNE 7

Although the FAA establishes “a liberal federal policy 

favoring arbitration agreements,” Moses H. Cone Mem’l 

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, (1983), it 

does not require arbitration beyond the terms agreed. Waffle 

House, Inc., 534 U.S. at 289. To determine the reach of a 

particular agreement, we must look to its express terms. Id.; 

see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621 

(2018) (“[The FAA] requires courts ‘rigorously’ to ‘enforce 

arbitration agreements according to their terms.’” (quoting 

Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 233 

(2013))).

There is no dispute that, like the EEOC in Waffle House, 

the Secretary is not party to the arbitration agreement 

between Browne and his entities and the delivery drivers. 

Browne nonetheless argues the Secretary is required to 

arbitrate his claims for monetary relief because the delivery 

drivers are the intended beneficiaries, and, therefore, the 

Secretary is in privity with the delivery drivers. To support 

his argument, Browne notes that any sums recovered under 

Section 16(c) are secured “on behalf of” and paid “directly 

to the employee.” This argument is not persuasive. 

Specifically, Browne’s reliance on Chao v. A-One Med. 

Servs., Inc., 346 F.3d 908 (9th Cir. 2003), is misplaced. In 

that case, we held that res judicata barred the Secretary from 

recovering overtime compensation for an employee when 

“suing for employee-specific rights of precisely the sort [the 

individual employee] already pursued.” Id. at 923. But we 

further explained that the Secretary would not have privity 

with an employee for res judicata purposes if, for example, 

the Secretary sought an injunction to “vindicate broader 

governmental interests[,]” not just to recover an employee’s 

“individual economic loss.” Id. Thus, it does not 

automatically follow that the Secretary shares the interests 
8 WALSH V. BROWNE

required for privity with the employees on whose behalf the 

Secretary sues. See id.

In Waffle House, the Supreme Court recognized that the 

government can vindicate a public interest while also 

pursuing employee-specific relief. See 534 U.S. at 296. 

Although the Secretary, unlike the EEOC, may not recover 

punitive damages under Section 16(c), the Secretary may 

still have interests independent of the aggrieved employee 

when seeking employee-specific relief, including deterring 

other employers from violating the FLSA and protecting 

complying employers from unfair wage competition with 

noncomplying employers. Simply put, recovering monies 

owed to aggrieved individuals does not necessarily indicate 

that the Secretary is operating solely for the benefit of those 

individuals. Id. at 294–95.

Moreover, the Secretary’s enforcement action, like the 

EEOC’s enforcement action, is controlled by the 

Secretary—not the delivery drivers. See Waffle House, 

534 U.S. at 291 (“If it were true that the EEOC could 

prosecute its claim only with [the employee’s] consent, or if 

its prayer for relief could be dictated by [the employee], the 

[lower] court’s analysis might be persuasive.”). The 

Secretary does not need an employee’s consent to bring an 

enforcement action. See Reich v. Stewart, 121 F.3d 400, 408 

(8th Cir. 1997) (explaining an employee’s consent is not 

required for the Secretary to bring a Section 16(c) action, as 

Congress deleted such requirement in 1974) (citing Pub. L. 

93–259, § 26, 88 Stat. 73). And, once the Secretary files suit, 

not only does the employee’s right to sue terminate, but the 

employee cannot intervene in the Secretary’s action. 

29 U.S.C. § 216(c) (“The right . . . to become a party 

plaintiff to any such action[] shall terminate upon the filing 

of a complaint by the Secretary . . . .”); see also Marshall v. 
WALSH V. BROWNE 9

U.S. Postal Serv., 481 F. Supp. 179, 180 (D.D.C. 1979) 

(“The statutory language indicates that employees possess 

no right to intervene in a suit brought by the Secretary.”); 

Usery v. Bd. of Pub. Educ., Sch. Dist. of Pittsburgh, 418 F. 

Supp. 1037, 1038 (W.D. Pa. 1976) (“The plain meaning of 

this language is that the employee cannot become a party in 

any capacity, including that of an intervenor, once the 

Secretary has filed suit.”).

Browne contends that Waffle House is distinguishable 

because it is based on the distinct rights and responsibilities 

of the EEOC, which the Secretary does not share. Of course, 

there are differences between the two agencies, including 

differences in their respective enforcement rights. For 

example, under the Americans with Disabilities Act and 

Title VII, an employee must file a discrimination charge with 

the EEOC before filing suit, and the EEOC has exclusive 

jurisdiction over the charge for 180 days. See Waffle House, 

534 U.S. at 291 (citing 42 U.S.C. § 2000e–5(f)(1)). Under 

the FLSA, an employee can file a complaint with the 

Secretary, but she can also proceed straight to filing suit in 

federal court. See 29 U.S.C. § 216(b). We find this an 

immaterial distinction for the question we must answer, 

however, because once the Secretary decides to sue (whether 

before or after an employee files suit), the Secretary, like the 

EEOC, is in “command of the process.” See Waffle House, 

534 U.S. at 291. The Secretary controls both the litigation 

strategy and disposition of any recovery obtained for the 

employee. 29 U.S.C. § 216(c). Under these circumstances, 

we see no meaningful way to distinguish Waffle House. See 

Am. Airlines, Inc. v. Mawhinney, 904 F.3d 1114, 1120 (9th 

Cir. 2018).
10 WALSH V. BROWNE

III. CONCLUSION

Because the Secretary, not the employees on whose 

behalf relief is sought, has authority to direct an FLSA 

enforcement action, the Secretary cannot be compelled to 

arbitrate, even if the employees have agreed to arbitration. 

“To hold otherwise would undermine the detailed 

enforcement scheme created by Congress simply to give 

greater effect to an agreement between private parties that 

does not even contemplate the [Secretary’s] statutory 

function.” Waffle House, 534 U.S. at 296.

AFFIRMED.