[00:00:01] Speaker 04:
Good morning, counsel.

[00:00:02] Speaker 02:
Good morning.

[00:00:03] Speaker 02:
May it please the court, and good morning, Your Honors.

[00:00:05] Speaker 02:
My name is Christopher Ward.

[00:00:06] Speaker 02:
I represent Appellants Aircraft Service International and Menzies Aviation USA, Inc.

[00:00:11] Speaker 02:
We'll refer to them collectively today as Menzies, and I'd like to hold about three minutes of time for about it.

[00:00:16] Speaker 02:
All right.

[00:00:16] Speaker 02:
Thank you, counsel.

[00:00:17] Speaker 02:
Thank you.

[00:00:17] Speaker 02:
Your Honors, the result reached by the district court in this matter is an aberration from every other court decision that has ever taken on the transportation worker exemption of the FAA.

[00:00:29] Speaker 02:
And this is the first case.

[00:00:32] Speaker 02:
where court has found that a class of workers with no direct relationship with interstate goods or cargo and that never crosses state lines in the performance of the work duties is nevertheless a transportation worker.

[00:00:47] Speaker 02:
And to reach that erroneous result, the district court failed to understand and correctly apply the clear language and clear meaning of the Saxon case.

[00:00:59] Speaker 02:
Instead of focusing on what the workers actually do,

[00:01:02] Speaker 02:
The district court here focused on the area where they perform that work, and that work's impact on the overall transportation process, but not on the work itself.

[00:01:12] Speaker 02:
And that is at clear odds with the commandments from the Saxon case.

[00:01:17] Speaker 02:
And given how much litigation that this issue is generating right now, this is a very important case.

[00:01:23] Speaker 02:
As I said, it's a first of its kind matter, where we've got the exemption applied to workers who never touched the interstate cargo

[00:01:29] Speaker 02:
It's critical that this court reject the flawed analysis from the district court.

[00:01:34] Speaker 04:
So, Counsel, just so I understand your argument, you say the district court didn't focus on the work actually performed.

[00:01:40] Speaker 04:
So you would just look at the fact that Mr. Lopez merely inserted fuel into an aircraft.

[00:01:48] Speaker 02:
In this case, Your Honor, correct.

[00:01:50] Speaker 02:
I think that's outcome determinative.

[00:01:52] Speaker 02:
Because it's undisputed in this matter that the class of workers at issue here

[00:01:57] Speaker 02:
have no direct involvement with the interstate goods.

[00:02:01] Speaker 04:
That depends on how you define involvement.

[00:02:06] Speaker 04:
If fueling the plane is part and parcel of the interstate transportation of the goods, wouldn't that be involvement?

[00:02:15] Speaker 02:
But it's not direct involvement under Saxon, Your Honor.

[00:02:17] Speaker 02:
And that's the key point here.

[00:02:18] Speaker 04:
You didn't say direct involvement.

[00:02:20] Speaker 04:
You said involvement.

[00:02:21] Speaker 02:
And if I misspoke, Your Honor, I apologize.

[00:02:23] Speaker 02:
But the requirement from Saxon

[00:02:25] Speaker 02:
is direct involvement, and Saxon said that is the, and I want to get the language right.

[00:02:32] Speaker 04:
Saxon used direct?

[00:02:33] Speaker 04:
Repeatedly, Your Honor.

[00:02:35] Speaker 04:
I thought it said the, okay, go ahead.

[00:02:39] Speaker 02:
Yeah, repeatedly the Saxon opinion references the term direct, and it characterizes that through the

[00:02:45] Speaker 02:
physical loading and unloading of goods.

[00:02:48] Speaker 02:
And that term is not a term of art in the Saxon opinion.

[00:02:51] Speaker 02:
It's repeated.

[00:02:51] Speaker 03:
But Saxon doesn't say that that's necessary for workers to fall under this.

[00:02:59] Speaker 03:
In footnote two, the court says that we recognize the answer will not always be so plain when the class of workers carries out duties further removed from the channels of interstate commerce

[00:03:10] Speaker 03:
or the actual crossing of borders.

[00:03:12] Speaker 03:
But we need not address those questions to resolve this case.

[00:03:15] Speaker 03:
So I don't think Saxon sets forth the outer limits in the way that you're suggesting it does.

[00:03:22] Speaker 03:
I mean, why am I wrong?

[00:03:24] Speaker 02:
Well, you're certainly right, Your Honor, in terms of what that footnote says.

[00:03:27] Speaker 02:
But that footnote raises the question to me that if mere supervision

[00:03:32] Speaker 02:
of the workers who, in fact, have the hands-on contact with the goods may not be enough, and I agree, Sasson's not resolving that question, but they're at least raising it, then where do you draw the line?

[00:03:44] Speaker 02:
And we go back to the fact that this court is the first decision that has ever applied the transportation worker exemption to individuals who do not have hands-on contact with the goods with two exceptions.

[00:03:57] Speaker 02:
One is the Third Circuit's decision in the Palco matter.

[00:04:00] Speaker 02:
where, in that circumstance, we had the supervisors directly managing those who did, in fact, have hands-on contact.

[00:04:08] Speaker 02:
And we've got the Southern District of New York's recent decision in Gabay, where it's essentially the same set of facts.

[00:04:15] Speaker 02:
And I think the Third Circuit probably didn't have the benefit of the sacks and language that's very precise and talks about actual involvement in the physical loading and unloading of the goods.

[00:04:27] Speaker 02:
And Gabay follows Palka.

[00:04:30] Speaker 02:
essentially.

[00:04:30] Speaker 02:
So I think that order is potentially unclear.

[00:04:34] Speaker 02:
But one way or another, there's two things we clearly do not have here.

[00:04:38] Speaker 02:
And one is there's no direct relationship with the goods themselves.

[00:04:42] Speaker 02:
And there's no class of workers who is supervising individuals with the class of work itself.

[00:04:47] Speaker 02:
So this case is an outlier.

[00:04:50] Speaker 02:
And I think the best way to understand this is then Judge Barrett, now Justice Barrett, really wrote this carefully in the Wallace opinion, which Saxon noted and which the Third Circuit decided with approval.

[00:05:01] Speaker 02:
What she wrote is that,

[00:05:03] Speaker 02:
The transportation workers must be connected not simply to the goods, but to the act of moving those goods.

[00:05:11] Speaker 02:
And this circuit in the In re Grice decision sort of said exactly the same thing when it wrote that transportation workers are those engaged in the actual movement of the goods.

[00:05:21] Speaker 02:
And I think Judge Malloy even has written on this in the, it's the McNamara versus yellow transportation case.

[00:05:27] Speaker 02:
I didn't cite that in our briefs.

[00:05:29] Speaker 02:
So I'll give you that now.

[00:05:29] Speaker 02:
It's 570 F third 950.

[00:05:32] Speaker 02:
That's an Eighth Circuit decision from 2009, but the language from there is that the Supreme Court has interpreted this exemption narrowly, agreeing with the majority of circuits that it is limited to those actually engaged in the movement of goods in interstate commerce.

[00:05:48] Speaker 02:
Now, we're not here arguing that fuelers aren't necessary to transportation.

[00:05:52] Speaker 02:
In fact, to use Lopez's own words from his brief, they enable it.

[00:05:56] Speaker 02:
But enabling interstate transportation is not part of the test.

[00:06:01] Speaker 02:
Being necessary to the process of interstate transportation is not part of the test.

[00:06:07] Speaker 04:
Council, doesn't our decision in Ripman pose a problem for you?

[00:06:10] Speaker 02:
I don't think it does at all, Your Honor.

[00:06:12] Speaker 02:
Ritman really deals with the issue of are workers who never cross state lines and the performance of their duties nevertheless interstate transportation workers.

[00:06:22] Speaker 02:
And we're not arguing here that the fact that fuelers don't cross state lines categorically exempts them.

[00:06:27] Speaker 02:
I think Saxon would say that's absolutely wrong.

[00:06:29] Speaker 02:
So the employees at issue in Ritman indisputably had the relationship

[00:06:34] Speaker 02:
with the goods.

[00:06:35] Speaker 02:
They were themselves transporting these interstate goods.

[00:06:38] Speaker 02:
And so Ritman really deals with, even if they don't cross state lines, can they nevertheless be interstate transportation workers?

[00:06:45] Speaker 04:
Some of the language in Ritman, to me, seems to present a problem for you because we said when the work is so closely related to interstate

[00:06:55] Speaker 04:
in foreign commerce as to be, in practical effect, part of it.

[00:07:00] Speaker 04:
It meets the test.

[00:07:02] Speaker 04:
Isn't that language problematic for you?

[00:07:04] Speaker 02:
It's not problematic, Your Honor, because you've got to realize how courts have applied it.

[00:07:08] Speaker 02:
And the courts have applied it.

[00:07:09] Speaker 02:
There's two components to this, if I see it.

[00:07:10] Speaker 02:
You've got to have, under Saxon, a direct involvement with the interstate goods.

[00:07:16] Speaker 02:
And your work has to essentially move them through the channels of interstate commerce.

[00:07:21] Speaker 02:
So when you talk about the so closely related language,

[00:07:25] Speaker 02:
That deals with the intrastate versus interstate movement of the employees themselves.

[00:07:30] Speaker 02:
It does not clarify the relationship that the class of workers have with the goods.

[00:07:35] Speaker 02:
And every case that has applied that language, and I would refer the court to the Singh decision from the Third Circuit earlier this year, that's another circumstance where post-Saxon, a court of appeal has used that so closely related language, but it specifically applied it with respect to the workers' movements, not to the workers' relationship with the goods themselves.

[00:07:55] Speaker 00:
What about the argument that the Supreme Court has also said that we have to look at what the state of the law was and the understanding at the time the exemption was enacted, and there are cases that predate the exemption that were

[00:08:12] Speaker 00:
fuelers, people who put coal into the tenders of a locomotive would be covered, even if they weren't on the locomotive, or even if they were away from the locomotive when it left the station.

[00:08:24] Speaker 00:
Isn't that the functional equivalent of a fueler?

[00:08:27] Speaker 02:
Well, I have a number of responses to that.

[00:08:30] Speaker 02:
The first is that I think the Circuit City rejects this notion that we should be interpreting interstate commerce as it was understood in 1925.

[00:08:37] Speaker 02:
In fact, Justice Kennedy, in that opinion, wrote the following.

[00:08:40] Speaker 02:
that he's rejecting the contention that the meaning of phrase engaged in commerce in section one of the FAA should be given a broader construction than justified by its evident language because it was enacted in 1925.

[00:08:53] Speaker 02:
That's part of the Circuit City decision.

[00:08:55] Speaker 02:
And to the extent you read New Prime, the more recent decision to suggest otherwise, if you look at what Justice Gorsuch is writing about there, he's talking about how to interpret the contracts of employment language from section one, not the interstate transportation portion of it.

[00:09:09] Speaker 02:
My second response to your question honor is it's very interesting that Lopez wants to really argue this FAA case under the federal employers liability act which is a remedial statute which does not have a specific enumeration.

[00:09:24] Speaker 02:
for railroad workers the way the FAA does.

[00:09:27] Speaker 02:
We're not dealing with cases that were passed or passed upon over a century ago.

[00:09:32] Speaker 02:
We've got Saxon, which is two years old.

[00:09:35] Speaker 02:
We've got a remedial statute, which this court and the Supreme Court have repeatedly said, we need to construe this exemption narrowly.

[00:09:43] Speaker 02:
So trying to graft from a remedial statute

[00:09:47] Speaker 02:
into this statute and analogize to a class of workers that would be covered under the FAA Section 1 regardless of whether they, because they're railroad workers, right?

[00:09:56] Speaker 02:
So they're not really useful for us to understand how should we apply the residual clause and we shouldn't be analogizing to a class of workers that's already enumerated and is not part of the residual clause.

[00:10:07] Speaker 00:
But you pointed out in your own brief that not all railroad workers are covered.

[00:10:12] Speaker 02:
I think that's from Saxon, Your Honor.

[00:10:14] Speaker 02:
I'm not sure we made that point in our brief.

[00:10:16] Speaker 00:
I know that we made the point in our brief that... Cited to a case where the railroad worker, trying to distinguish the person who puts the coal in the tender, you cited a case that said not all railroad workers are covered because maybe they put it in the bin from which they take the coal and it wasn't covered.

[00:10:35] Speaker 00:
Sure.

[00:10:36] Speaker 02:
With respect, Your Honor, I think that's from Amicus' brief, but in any event,

[00:10:40] Speaker 02:
It's a good point, but again, I would even say to that is we don't need to analogize to these centuries-old decisions under the fetal.

[00:10:47] Speaker 02:
We've got Saxon, and we've got all of these other cases that have said repeatedly, as Judge Bear wrote it, you've got to be involved with the goods and with their actual movement.

[00:10:59] Speaker 02:
And what we have here is a class of workers that just aren't.

[00:11:01] Speaker 04:
Well, Ripman didn't say that.

[00:11:03] Speaker 02:
No, Ritman didn't say that, Your Honor.

[00:11:05] Speaker 04:
And that's our binding precedent.

[00:11:07] Speaker 02:
Agreed.

[00:11:07] Speaker 02:
And I don't think there's any issue.

[00:11:09] Speaker 02:
I think Ritman is fully controlling here as well in as much as we wouldn't be arguing that the fuelers are not covered because they don't cross state lines.

[00:11:18] Speaker 04:
But I'm just saying, Ritman does not have that direct language that you're relying upon from Saxon.

[00:11:25] Speaker 02:
I agree.

[00:11:26] Speaker 02:
And Ritman is a pre-Saxon decision.

[00:11:31] Speaker 04:
Carmona Mendoza, we said that there is no clear conflict between Ripman and Saxon.

[00:11:37] Speaker 04:
So our precedent is that Ripman and Saxon are consistent.

[00:11:41] Speaker 02:
And I think that they are, Your Honor.

[00:11:43] Speaker 02:
I agree.

[00:11:43] Speaker 02:
I also note in the Carmona decision that this court wrote that covered workers must be actively engaged.

[00:11:49] Speaker 02:
and play a direct and necessary role in the goods moving.

[00:11:52] Speaker 02:
And that's the point of Saxon.

[00:11:53] Speaker 02:
And we've talked about this.

[00:11:54] Speaker 04:
That's upon a ripment as well.

[00:11:55] Speaker 02:
Sure.

[00:11:56] Speaker 02:
But a ripment is very much focused on the movement of the workers as opposed to the relationship of the goods.

[00:12:01] Speaker 03:
Why isn't fueling an airplane both a direct and necessary part of moving goods across state lines?

[00:12:08] Speaker 03:
I just don't understand.

[00:12:10] Speaker 02:
Sure, Your Honor.

[00:12:11] Speaker 02:
It's definitely a necessary part.

[00:12:12] Speaker 02:
I'm not going to quibble with that.

[00:12:14] Speaker 02:
But I would say the air traffic controller in the FAA tower is also a very necessary worker in the transportation of those goods.

[00:12:20] Speaker 02:
But he's far away.

[00:12:22] Speaker 02:
So how far do we go is the question.

[00:12:24] Speaker 02:
Do we go that far?

[00:12:26] Speaker 04:
We don't have to go that far in this case.

[00:12:29] Speaker 02:
I understand, right?

[00:12:30] Speaker 02:
But I don't think we need to.

[00:12:31] Speaker 02:
But that's sort of this idea is if it's necessary to transportation, then the line gets very, very amorphous.

[00:12:38] Speaker 04:
That's pretty direct, too.

[00:12:41] Speaker 02:
But it's not direct with the goods themselves, Your Honor.

[00:12:43] Speaker 02:
And I think that's the point of Saxon.

[00:12:45] Speaker 04:
I think that's the difficulty I'm having with your argument is that I'm not sure that Ripman says it has to be directly connected to the goods.

[00:12:55] Speaker 02:
I appreciate that Ripman does not say that, Your Honor.

[00:12:58] Speaker 02:
I agree.

[00:12:58] Speaker 02:
Saxon does.

[00:13:00] Speaker 02:
And that is the point here is under Saxon.

[00:13:02] Speaker 04:
We were interpreting Saxon in Ripman.

[00:13:05] Speaker 04:
And we're bound by our decision in Ripman.

[00:13:13] Speaker 02:
Yeah, I've got Ritman, Your Honor, as an August 2020 decision.

[00:13:17] Speaker 02:
Saxon is a 2022 decision.

[00:13:19] Speaker 04:
Now, I appreciate that the court- We would have to say that Saxon, that Ritman is irreconcilable with Saxon in order for us to disregard Ritman.

[00:13:28] Speaker 02:
No, I don't think the court needs to disregard Ritman.

[00:13:30] Speaker 02:
I think Saxon helps understand what Ritman said.

[00:13:35] Speaker 03:
But Saxon, Saxon, what I quoted to you from

[00:13:39] Speaker 03:
from Saxon cites our decision in Ritman in saying that the court is not addressing the entire scope of what's included in this FAA exemption.

[00:13:48] Speaker 03:
So I don't see those cases as irreconcilable.

[00:13:51] Speaker 03:
I also don't see Saxon as answering

[00:13:54] Speaker 03:
the question for all time about whether the contact has to be as direct as you're describing.

[00:13:58] Speaker 03:
I mean, they seem to explicitly leave the question open.

[00:14:01] Speaker 02:
Sure.

[00:14:02] Speaker 02:
And I want to briefly address this and save some time if I can.

[00:14:04] Speaker 02:
I don't think Saxon and Ribbon are irreconcilable, and that's not our argument today.

[00:14:08] Speaker 02:
What I'm saying is the language of Saxon that repeatedly talks about direct

[00:14:12] Speaker 02:
involvement and that word direct is important.

[00:14:15] Speaker 02:
It's used repeatedly and I defined it in our apply brief to mean in immediate physical contact.

[00:14:21] Speaker 02:
So if direct involvement with the goods means in immediate physical contact, that's what the fuelers lack, Your Honors.

[00:14:28] Speaker 02:
I'm going to try to hold 30 seconds here if I may.

[00:14:30] Speaker 02:
Okay, thank you, Counsel.

[00:14:30] Speaker 04:
Thank you.

[00:14:32] Speaker 04:
I'd like to discuss when you come back direct involvement with the good and what language in Saxon says that.

[00:14:37] Speaker 04:
Thank you.

[00:14:44] Speaker 01:
Good morning, Your Honor.

[00:14:46] Speaker 01:
Michael Rubin, Alchala Berzon for Plaintiff Davis.

[00:14:51] Speaker 01:
Yes, fueling an aircraft about to embark on interstate or foreign commerce is part and parcel of interstate transportation within the meaning of the FAA.

[00:15:14] Speaker 01:
The facts of Saxon and the decision in Saxon, as Judge Thomas pointed out, left open this issue, not only in footnote two, which Judge Thomas quoted from, but also in footnote one, in which the court said it doesn't have to deal with the question of whether there has to be hands-on involvement.

[00:15:36] Speaker 01:
And as Judge Malloy pointed out, in order to decide this case, you have to look at history.

[00:15:43] Speaker 01:
you have to look at what Congress in 1925 intended.

[00:15:49] Speaker 01:
And you have to look at the test as set forth in Circuit City, in New Prime, in Saxon, and in this court's cases, both in Ritman and in Carmona, which said that Ritman was not irreconcilable with Saxon.

[00:16:09] Speaker 01:
So what is that test?

[00:16:11] Speaker 01:
That test says,

[00:16:13] Speaker 01:
that to determine what engaged in interstate transportation means in section one, you look to see in part whether the work performed by the relevant class of workers is so closely related to interstate transportation as to be practically a part of that.

[00:16:38] Speaker 01:
Then the question, that's the test.

[00:16:40] Speaker 01:
Then the question is, how do you apply that test?

[00:16:43] Speaker 01:
And where do you look for the sources of information to help you determine how to apply that test?

[00:16:50] Speaker 01:
And the answer is in Saxon, is in Ritman, is in Tenney Engineering.

[00:16:56] Speaker 01:
You look to the cases.

[00:16:59] Speaker 01:
that the Ninth Circuit and the Supreme Court looked to under the statutes that had been enacted prior to Congress's enactment of the FAA in 1925 that used the identical language.

[00:17:14] Speaker 01:
Because what all of these courts say is when you're trying to figure out the meaning of engaged in interstate commerce in 1925,

[00:17:25] Speaker 01:
You look to what Congress understood that phrase to mean, and the best evidence of what Congress understood that phrase to mean was the case law up to 1925 applying that identical language in other statutes.

[00:17:43] Speaker 01:
What are those statutes?

[00:17:45] Speaker 01:
Ritman cited Anne Saxon, cited Princip Lee Fila, the Federal Employers Liability Act,

[00:17:53] Speaker 01:
also the Clayton Act, used the identical language, and drew the sort of distinctions that the courts are required to draw.

[00:18:02] Speaker 01:
in determining whether a class of workers' jobs are sufficiently closely related to interstate transportation, like a fueler's job is, as Judge Malloy pointed out, like the firemen who put the coal in the locomotive engines.

[00:18:20] Speaker 01:
So let's go back to Fila law.

[00:18:22] Speaker 01:
And let's go back to the cases that the Supreme Court in Saxon actually cited.

[00:18:28] Speaker 00:
Well, let me ask you this, though.

[00:18:30] Speaker 00:
as I understand with the appellants arguing in this case is that it would be in interpreting the statute we should have a bright line rule that says basically if you don't touch the goods or maybe supervise someone who touches the goods then you're not covered and that would arguably reconcile with the writman because they even though it's interstate they touch the goods

[00:18:57] Speaker 00:
And if we say, well, we're going to reject that bright line rule, then do we have to talk about where the line is in this case?

[00:19:05] Speaker 00:
Or is the FAA controller necessary?

[00:19:10] Speaker 00:
The airplane mechanic is necessary.

[00:19:15] Speaker 00:
Do we have to talk about where the line is if we reject the bright line rule that the appellant wants?

[00:19:20] Speaker 01:
You don't, any more than the US Supreme Court in Saxon had to draw.

[00:19:25] Speaker 01:
And that's footnote one.

[00:19:27] Speaker 01:
That's where they said, we don't have to decide whether a supervisor who doesn't touch the goods is covered within the meaning of Congress in 1925.

[00:19:36] Speaker 01:
And this court doesn't either.

[00:19:38] Speaker 01:
These cases proceed incrementally.

[00:19:40] Speaker 01:
There are lines drawn.

[00:19:42] Speaker 01:
That's what the Fila cases do.

[00:19:45] Speaker 01:
The Fila cases and the Wirtz case, which was an FLSA case,

[00:19:51] Speaker 01:
But it was an FLSA case involving someone who brought fuel on the army base and said that that person who was covered looked again to those Fila cases to determine what the coverage would be.

[00:20:04] Speaker 01:
FLSA obviously was a later statute, but went back earlier in time.

[00:20:08] Speaker 01:
What I'm saying is simply you only need to decide this case.

[00:20:15] Speaker 01:
This is the most clear cut of the fueler people in the airline industry who are having some connection to the aircraft.

[00:20:26] Speaker 01:
But if you go back and you look at the fireman case, and I would start with the Fila cases like Birch and Shanks, which Saxon cited and which this court in Richmond cited.

[00:20:38] Speaker 01:
And then you look to the cases, in particular the North Carolina Railroad versus Zachary

[00:20:45] Speaker 01:
and the Norfolk versus Ernest case.

[00:20:47] Speaker 01:
Both of those were cited in shanks, and I believe one of them was cited in Ritman as well.

[00:20:53] Speaker 01:
Those are cases involving firemen, the people who load the coal onto the locomotives.

[00:21:00] Speaker 01:
In both instances, the firemen were not actually engaged in any interstate movement themselves.

[00:21:09] Speaker 01:
They had prepared the engines

[00:21:13] Speaker 01:
for interstate travel, then they left to do something else.

[00:21:17] Speaker 01:
One of them was killed while crossing the tracks going to his boarding house.

[00:21:21] Speaker 01:
That was the Zachary case.

[00:21:23] Speaker 01:
And the Ernest case, sadly, it was another death case.

[00:21:26] Speaker 01:
The fireman was killed walking on adjacent tracks after preparing the engine.

[00:21:31] Speaker 01:
There is no functional difference between the fireman and Zachary and Ernest.

[00:21:38] Speaker 01:
and Mr. Lopez and the other class of airline fuelers who are putting the fuel on the airplane so it can fly in interstate commerce.

[00:21:49] Speaker 01:
They satisfy the test.

[00:21:51] Speaker 01:
They meet the historical example.

[00:21:54] Speaker 01:
The district court was plainly correct.

[00:21:56] Speaker 01:
She drew the lines.

[00:21:58] Speaker 01:
She indicated, as these other Fila cases, as words which drew the line between the individuals who brought the fuel to the interstate transportation instrumentality,

[00:22:12] Speaker 01:
and other people who worked on the Army base.

[00:22:16] Speaker 01:
There are lots of ways you can analogize, but those are the closest cases historically, and they fully support the conclusion that Judge Gee reached in this case, that when you are the person

[00:22:30] Speaker 01:
who is in the class of workers, because that's what section one talks about, class of workers, whose job is to make sure these instrumentalities of interstate commerce can, in fact, travel in interstate commerce.

[00:22:44] Speaker 01:
You are, in Judge Rawlinson's words, part and parcel of that interstate transportation.

[00:22:50] Speaker 01:
And in the words of all the Fila cases and Ritman and Waithaka,

[00:22:56] Speaker 01:
versus Amazon Comm, the First Circuit case that Ripner relied upon and made the same analysis, you are so closely related to interstate transportation as to be practically a part of it.

[00:23:09] Speaker 04:
So, counsel, what is your response to opposing counsel's reliance on the language in Saxon that he represents talks about direct involvement with the goods that are moving in interstate commerce?

[00:23:27] Speaker 01:
I have two responses to that.

[00:23:29] Speaker 01:
First, Saxon was dealing with the specific facts of Saxon.

[00:23:33] Speaker 01:
That was a goods case.

[00:23:34] Speaker 01:
This isn't a goods case.

[00:23:36] Speaker 01:
It is certainly, Ripman was in a good case, Waithaka was in a good case.

[00:23:41] Speaker 01:
Many of the Section 1 cases aren't cases involving cargo and who is

[00:23:48] Speaker 01:
working in interstate transportation because of the relationship they have with the cargo.

[00:23:55] Speaker 01:
Yes, there has to be some significant close relationship between the work you're performing.

[00:24:03] Speaker 01:
It can't be two steps removed, like the Fila cases that were cited by the amicus for the defendant.

[00:24:14] Speaker 01:
You can't be too far removed.

[00:24:18] Speaker 01:
put the fuel somewhere where it's taken by someone else and then it's loaded into the plane, that's clear.

[00:24:24] Speaker 01:
But if you are directly involved in ensuring that an instrumentality, and this is part of the definition of commerce from the 1910 Black's Law Dictionary that Saxon relied upon and that Ritman also relied upon, if you are

[00:24:40] Speaker 01:
If your job is essential to ensuring that the instrumentality of interstate transportation or foreign transportation can actually move in interstate and foreign commerce, then you are covered by Section 1 and you are exempt under the Federal Arbitration Act.

[00:25:07] Speaker 01:
There's more I could explain, but I think these are the principal points.

[00:25:11] Speaker 01:
And unless the panel has further questions, we will submit.

[00:25:15] Speaker 04:
It appears not.

[00:25:16] Speaker 04:
Thank you, Council.

[00:25:17] Speaker 04:
Rebuttal.

[00:25:28] Speaker 02:
Thank you, Your Honor.

[00:25:29] Speaker 02:
Let me go right to the point you left me with before, which was the direct involvement language from Saxon.

[00:25:35] Speaker 02:
That's what Justice Thomas wrote, that that is the central feature of a transportation worker, that they have direct involvement and are actively engaged in the movement of the goods.

[00:25:47] Speaker 02:
And to Judge Malo's point, the mere touching of the goods is not necessarily what we're saying.

[00:25:52] Speaker 02:
You have to be physically involved with the movement of the goods.

[00:25:57] Speaker 02:
So somebody can't just walk into a warehouse, touch the goods, and they qualify.

[00:26:00] Speaker 02:
They've got to actually be part of the process.

[00:26:03] Speaker 02:
And I know my time's expired, but I just

[00:26:04] Speaker 04:
But that's okay, because I have a follow-up question.

[00:26:07] Speaker 04:
What's your response to opposing counsel's observation that this is not a goods case, and so that analysis is not apropos?

[00:26:15] Speaker 02:
I'm so glad he said that, Your Honor.

[00:26:17] Speaker 02:
I wrote it down verbatim because that's where I was going to go.

[00:26:19] Speaker 02:
No, this isn't a goods case.

[00:26:20] Speaker 02:
In fact, it's the very first FAA case where the Section 1A's exemption

[00:26:27] Speaker 02:
has been applied to a class of workers that do not either move the goods or supervise the goods.

[00:26:33] Speaker 02:
If we're dealing with a statute that was passed almost 100 years ago, and this is the first time we're dealing with a situation where it's being applied to workers who never actually themselves moved the goods, that should speak to something.

[00:26:49] Speaker 02:
And to your point, Judge Malloy, that we don't have to draw the line here, well,

[00:26:55] Speaker 02:
If we draw the line at something other than something that's practical and easy to understand, then where are the lines going to be drawn in the future?

[00:27:03] Speaker 02:
Because this decision is going to be the first one that departs from all that theory if we uphold the district court here.

[00:27:09] Speaker 02:
So in the future, how are other district courts going to draw the line if we say the rule isn't direct involvement when the word direct means in immediate physical contact, as Saxon says, it just means you somehow have to directly enable.

[00:27:24] Speaker 02:
be directly involved.

[00:27:25] Speaker 02:
That gets much more amorphous.

[00:27:27] Speaker 02:
And I think Saxon is very clear, yes, we're not going to go beyond what we're dealing with right here, but we're also very clear in the language that we're using, active engagement.

[00:27:37] Speaker 04:
Saxon left open that possibility.

[00:27:43] Speaker 04:
Saxon didn't draw the line.

[00:27:45] Speaker 04:
that you want us to draw.

[00:27:46] Speaker 02:
No, I agree with that, Your Honor, but it's a word to do, essentially.

[00:27:49] Speaker 02:
The words of Saxon matter.

[00:27:51] Speaker 02:
The fact that the Supreme Court said it repeatedly.

[00:27:53] Speaker 04:
The words matter, but you can't ignore the fact that it said we don't have to draw this line, but it didn't preempt the drawing of that.

[00:28:02] Speaker 02:
For sure, and I think we could look at footnote two going either way, because the Supreme Court clearly raises the question if mere supervision of those who are in fact moving the goods might not be enough, that's focused.

[00:28:14] Speaker 02:
And the language that the opinion uses repeatedly, physical unloading and loading of goods, direct involvement, active engagement, those are limiting phrases, and they weren't passing references.

[00:28:26] Speaker 03:
The court surely could have just explicitly closed it off.

[00:28:29] Speaker 03:
Footnote one could have said, wait,

[00:28:31] Speaker 03:
not, we need not consider whether supervision would suffice.

[00:28:35] Speaker 03:
It could have said supervision shall not suffice.

[00:28:39] Speaker 03:
And I mean, they don't, they don't say that.

[00:28:41] Speaker 03:
So, I mean, I agree with Judge Rollinson and the court didn't do what you're saying that we must do now to avoid a catastrophe.

[00:28:47] Speaker 03:
I'm not sure I agree.

[00:28:49] Speaker 02:
I'm not sure that I'm saying you must do.

[00:28:51] Speaker 02:
I'm saying that the words of Saxon and language are very precise and they're used repeatedly and that matters and they have clear meanings.

[00:28:58] Speaker 02:
Direct means in immediate physical contact.

[00:29:01] Speaker 02:
Physical unloading, the word physical means with the body.

[00:29:05] Speaker 02:
And as I said, and we cited this in our reply brief, there's a long string side of about eight to nine different points within Saxon where the Supreme Court's opinion repeatedly goes to that language.

[00:29:15] Speaker 02:
That matters.

[00:29:16] Speaker 02:
The passing reference to slow closely related does not.

[00:29:20] Speaker 02:
And so I realize I'm well over my time.

[00:29:22] Speaker 02:
I'm happy to answer more questions.

[00:29:23] Speaker 04:
But we have that in writment, though.

[00:29:25] Speaker 04:
That's our precedent, too, that we cannot ignore.

[00:29:31] Speaker 02:
I don't think they're in conflict in that particular circumstance.

[00:29:36] Speaker 04:
All right.

[00:29:37] Speaker 04:
Thank you, counsel.

[00:29:38] Speaker 02:
Appreciate the court's careful consideration.

[00:29:39] Speaker 02:
Thank you.

[00:29:40] Speaker 04:
Thank you to both counsel for your helpful arguments in this challenging case.

[00:29:43] Speaker 04:
The case was argued, is submitted for decision by the court, and our final case on calendar for argument today