Craft

ORDER

A judge of this court called for en banc review. A vote was taken and a majority of the non-recused active judges did not vote in favor of en banc review. The sua sponte call for en banc review is therefore DENIED.

The opinion filed on December 2, 1998, 161 F.3d 1199 , is amended in accordance with the amended opinion attached hereto.

OPINION

We must decide the threshold issue of whether we have jurisdiction to hear Campbell Soup Company’s (“Campbell Soup”) interlocutory appeal from the district court’s denial of its motion for summary judgment. Because we conclude that appellate jurisdiction is lacking, we dismiss the appeal.

As there is no final judgment or any other applicable exception to the final judgment rule, this court has jurisdiction only if the Federal Arbitration Act (“FAA”) applies. See 9 U.S.C. § 16 (providing for interlocutory appeal under the FAA). Our jurisdiction therefore hinges *1084 on the proper interpretation of the FAA in relation to employment contracts, which is a question of first impression in our circuit. See Kummetz v. Tech Mold, Inc., 152 F.3d 1153 , 1155 n. 2 (9th Cir.1998) (“Whether § 1 of the FAA broadly excludes arbitration agreements…

Dissenting.

Today, the majority goes against the great weight of circuit court authority 1 by holding that exclusionary clause of § 1 of the Federal Arbitration Act (“FAA”) applies to all contracts of employment within the scope of the Commerce Clause and that we therefore lack jurisdiction to hear this interlocutory appeal. Because I find that the plain language of statute dictates a contrary result, I respectfully dissent.

The majority avers that, when sections 1 and 2 of the FAA are read together, the term “engaged in interstate commerce” is ambiguous. To resolve this perceived ambiguity, it examines the historical context and legislative history of the FAA. From these extrinsic sources, the majority determines that Congress clearly intended to exclude all employment contracts from the ambit of the Act and that therefore the traditional rules of statutory interpretation are inapplicable because their use would frustrate obvious Congressional intent. In contrast to the majority’s approach to statutory interpretation, I believe that we have an obligation to fust analyze the text and structure of the FAA before turning to extrinsic material. Only if these inquiries prove…