just for context sky west airlines flies planes for delta united usa or other other airlines under the under the mainline carriers name this case is pretty basic i'm like virtually every other hourly employee were group for this for the sky west flight attendants their wages go down as their work days get longer there are wage rights their hourly wage rates are in a progressive state of going down so one of the things that worried the district court here the let's take the f l us a claims first and will deal with the dormant commerce the hourly wages of any of the plaintiffs fell below seven dollars and twenty five cents an hour the minimum is that yes i understand perfectly and one of the problems is that for the flight attendants their trips are between one and four days long and a trip being they started their base they fly other places and then they come back sometimes it's one day and sometimes  days but with is it your view that they're on duty status from the time they leave their base to the time they return or it is or the you know of the night or know that there's actually a term for the entire that entire time which is called time time away from base in the glossary that we included and i think the fifth or sixth roman numeral page that is called time away from base maybe i didn't put it on there because we didn't talk about as much ado not time is different duty time is the time for the first report of the day the report time  to fifteen minutes after the the plane door opens at the end of that day right in what the district judge says he's worried about is that you and i understand that sky west has this unique block time idea but he says we'll see but how many additional hours would it take to have that hourly rate dip below the minimum wage and he thought it was in implausibly large number of hours like where are these other thirty five hours over the course of days or five hours a day going to come from and i wonder this is really in some ways about rule eight you know how much did you have to plead to show that there were some significant weeks in the year i don't know whether you're theories that work week whether it's the work day whether it's the trip you know but the precision there would help me to actually that's that's exactly one of the reasons why we feel like we have met the rule eight standard because we had piecemeal documents and within the within appendix those are showing but the when when the district court started doing the math and saying  the example was was for sara hudson was working in california and and we had alleged that in a fifteen day period she made seven dollars and eighty three cents an hour no overtime so that was a clear allegation and we said we cannot tell how much she made an exact seven day period the reason we can't is because number one you've got a fifteen day and that maybe if because she was in you know los angeles maybe she had to leave early to get to the airport because of the l a traffic and for the really actually enough additional hours that it went below seven twenty five are you claiming this is time she should be kind of uncertain for that part is is a question of law because i look at all seven twenty five from her example well well from so from her example it's actually fairly easy and again this is a factual issue and we think as a matter of law we should not have had to come up with the exact week that she was paid less we think that we i just interrupt and say you know it's the pleading it's a whole reveals no time when the person who is paid less than the minimum wage why wouldn't a district judge within within his rights just say you've pleaded yourself out of court you know you suppose i'll make a round number and suppose your pleading says they were every year every week of the year they were paid at least eight dollars an hour sometimes more sometimes only eight dollars well that wouldn't stay the claimant of the f in a fifteen day period her wages were seven dollars an eighty three cents and that part we know and we can prove we can't prove the distribution of those but if you instead of alleging he's held us to a fifteen day averaging here even though he's saying it's a seven day measure but if you instead pro rate that day to day and say one week maybe they made ten dollars an hour and in reality the following week they were made she would have made six dollars and seventy nine cents i understand that is a hypothetical possibility but what i'm concerned about if that's your answer is why what takes that beyond the speculative i mean they say that then yes that could be maybe she works one hour one week and all the rest of the hours the second week but that doesn't it what takes that beyond speculation when you i think that the possibility standard with u as have other members of this court that say you don't have to prove your case but you do have to show enough think the way sometimes which will make the story hang together you've got to show that it could have happened but you can't you can't it was flying those those weeks that information i gather was available to you we had we had parts out of that information but it does not coordinate with the wage information that we have and if you will let me and if you will look at i've got some exact well for example if you look at in the pending i later point documents between a ninety eight and a one hundred the documents that were provided to us voluntarily we never got to the point those documents what has happened is there that makes every plaintiff together both from the california and the illinois cases they have stripped their names them by by date and it's the documents that we were working with did not include all information that would be necessary to for the state more claims we very clearly have possible plausible allegations in our complaints for every single pla has whether whether flight attendants as an employee group have no protection from any state wage law if we're switching over to the commerce clause i think there are plenty they say and i think that this is correct they say that it has to be logical under the circumstances that's not the exact quote but they we don't think that there should be a strict seven day you have to allege a violation within they seven days we also don't think there necessarily needs to be a one day measure we think that the  eighteen congress has already spoken to the preservation of state and local law and there is nothing in that section that has an asterisk that says except flight attendants or accept make an exception actually i'd like to get my colleague to give me some water if you wouldn't mind quite they do make an exception under two thirteen before interstate transportation workers they say that interstate transportation workers are not entitled to overtime so many of the flight attendant time joy and thank you so they know that the flight attendants are there they have this other provision of the law that says in this particular instance federal law is providing a floor not a ceiling paraphrase and in your view that means that we're not in a pike against bruce church balancing situation period no i think i think pike is perfectly appropriate here and because i do think that there is a balancing that you need to do this or bouncing if there is an affirmative decision by congress under the is pointing out that even though it's complicated for interstate retailers to charge a charge state taxes depending on where the product has has landed even though it is it's complicated it is not as complicated and with the newest technology  has to comply with with minimum standards and there are many if not most other airlines have more than one formula for for wages and excellent example and a really clear description is in the dissent case the st versus delta which is massachusetts case  they describe how delta actually has four formulas they have a formula that is nearly identical to the sky west one which is only flight time and then the rest of the day is taking that wage down but but delta probably the most applicable one is delta says the length of your duty day so from that your report time to fifteen minutes after if if you take half of your hourly wage so let's just as a hypothetical if the if the flight attendant is making twenty dollars an hour for flight time then just st hour delta actually has a secondary measure and it says if your entire duty day from report time paid ten dollars an hour for your entire duty day yes scott yes could do that it's not that difficult and that shows you that during your duty day you will always be making at least ten dollars an hour so they could pick that number to be seven dollars and twenty five cents or they could pick that number to be and interact ok correct so now you want to have one are one minute away from using up all of your rebuttal time so i will invite you wish to say that to say that now well we think single state that's part of the cost of your business ok thank you i welcome all comers may please accord like the first discuss the federal minimum wage claims and then move on to the to the state claims plaintiff theory in the district court of plenty of room for the state claims because that's what i really want to talk to you employees in many states or that we might have to deal with different state laws the plaintiffs try to say that well sky west is no different to them in wal mart or starbucks but the problem is that wal mart and starbucks employees don't cross state lines multiple times every day and that is really really why flight attendants are different and so you wait here here's what i want to ask you about that our flight attendants are certainly in that category but many traveling sales people would be in that category many people who are in the consulting business are in that same category and if you work for mckinsey you know you're in minneapolis one day and you're in des moines the next day and you're somewhere else and what i'm troubled by your argument is that there is a statute congress has spoken to this that's my part one concern about your position so if congress had wanted to say oh experience has shown us that this is actually really too cumbersome for people like sky west or mckinsey or you know john deere whoever it is maybe change this i find the balancing test one that depends on facts and the district judge did not have facts in front of him so why we don't need at least to get a better or more appropriate  allowed to have higher minimum wages it with regards to the balancing test the plaintiffs of have asserted that well the district court should have taken account of for example these local benefits but but they and burtons i have no idea how certain sim this would be on you because  tly a huge amount of the information is already in your computers and for all i know you're getting some leverage want to turn your old right you little code might solve the whole problem so the district court the the complaint certainly details how flight attendants have these unpredictable schedules even when they have schedules they have layovers they have things literally affected by the weather but most important says that you have you have the computer records of all of this there's it's not first of all there is a great burden of course and in keeping track of where l twenty six hundred flight attendants are at every moment and when they cross over it went across state borders when they cross into local jurisdictions that have their own minimum wage laws etc etc etc but again unique burden for sky west as opposed to every other airline in the country and absolutely not which is why there are many of these cases against various airlines and more and in several of which the inherent one that can be recognized simply a looking at all the state laws that says for example just california just one state california just one state they can't even agree when their law applie different courts in california disagreed the ninth circuit had to ask sort of five questions to the california supreme court court california court said well we have a multi factor test we have a primary test lobby congress to repeal section t the plaintiff said only one response he gets to the second opinion and i'm a page twenty five the twenty six is about a page on where there is some discussion of the birds but there isn't the type of detailed balancing that one would expect before you take away a plaintiff's claim under state statutes that would result in them possibly having some recovery that obviously we've got to respect the state legislatures who come up with these laws been signed defendant's representation is without challenge i don't know where that comes from we would not have filed the twelve the six motion if if if it hadn't been for the fact that all these allegations about the cross constant crossing  state over state lines interstate commerce including many local jurisdictions that have their own laws all of that is pleaded right in the complaint and i thought as you know there are many other industries that i can think of right off the top of my head where you would say this same thing i think there are many other industries where there were people cross state lines is no question about it but to cross state lines multiple times in one day so what if you know the quad cities territory for you know john deere tractor s or something you're spending time in iowa you spending time in illinois maybe pop down to missouri you know you you're in a number of states that it's certainly possible that there are individuals out there that cross state lines all the time state wage laws and that can be done with out factual to them then it isn't saying here well i would say this that what the what the district court focused on mostly and what i'd like this court to focus on is the fact that it is impossible for an airline to comply with both california law and washington state law when they both claim exactly the same title and we don't have that case in front of us i'm going to point out and it seems to me if we had a case where sky west was being accused of not complying with washington state law because you were complying with california law and by the same token the other thing this actually happens internationally is well then we would have a properly presented question of whether when congress said state laws apply whether there's and even if in even if that even if the state said that of course that inherently brings in all the other states that might say well our law says this in our law says that and that's what the district judge is getting this all the time so i'll tell you about my own says that i live in illinois true enough that's where my houses and so illinois withdraws income tax from my pay stub twice a year i have to go to washington d c to attend the judicial conference of the united states absolutely work related you know have to do it the d c is not to ducting income tax from my paycheck for that it's understood that my duty station is here in illinois and states work with that kind of allocation all the time so again i feel like you are trying to raise a question that might be true are steps down the line don't think it's a question that we have here the if if your judicial conference were in california the california supreme court would say well that california california does lay claim to your time actually i mean we've had judicial conference committee meetings in california may not as a practical matter maybe nobody brings that up but california would say under the that i will leave you on the other subject with the fact that sky west and as other airlines are based are faced with a really an impossible task of what to do when multiple states a aren't sure about what their own state's laws are be two or more states may claim the exact same time now the first problem would exist even if you are a purely in truck california carrier the still have to figure it out and i take it you wouldn't then claim that you weren't obliged to abide by whatever california the real problem is from the multi jurisdictional nature of the work at the how often that happens how unpredictable the schedules are but also the fact that that these that more than one state would claim the same exact time and the california you know what the california supreme court says to do in that case assault and sullivan the oracle they say well we apply a conflict of laws analysis will now on top of everything else sky west is supposed to sit in its headquarters in in utah and say well we're going to apply a conflict of laws analysis that that's a job for a court there's no question in a certain case that a court might bring that up but the real dormant commerce clause argument is that it's an impossible task for an airline and an airline that  would have to do it every day with twenty six hundred flight attendants who schedules change all the time so not only does it have to do it once it might have to do it every week week the same exact the sort of judicial task that is not fair to ask of an airline and of course interstate co but the airline first of all won the case because a plaintiff misunderstood their own paycheck it was very simple the district court has said we don't really have to go any further than this but that case is on appeal to the ninth circuit it's where all these sort of questions to the california supreme court are coming from procedure to match i may not be able to convince you of that but it's it seems to me that these burdens are following naturally from the fact that these flight attendants have these kinds of schedule see different depending on what the state laws because some states have laws that i think would be people who've written interesting scholarly articles who wonder whether there is even a dormant commerce clause and agree but of course we all agree that the supreme court says there is and so for now to have one page i understand that it doesn't mean interact then it's our job to follow that i will disagree but i do want to make of first a procedural point that this argument about specific authorization was seem to me to be made for the first time in their reply brief but granting that i don't i don't think it holds water anyway making a dormant commerce clause argument that says that the problem is that these states are having higher minimum wages wal mart could say they wouldn't but wal mart could say i suppose well it's a dormant commerce clause problem because we have to pay those high minimum wages in los angeles and this would be an answer to that no i understand it's not an answer to my problem not an answer to the airlines problem because we're not complaining that there are higher minimum wage rates and given states that's not going to hate them you're saying you don't want to have to laws that's not the problem the problem is that it's impossible to comply with this patchwork of laws every day for a flight attendant we're not we are not saying we are not starbucks i think it's a problem because we have different ones here and here here we are saying it's a problem because the same flight attendant has a different one here here and here the same person congress passed a statute that violates the dormant commerce clause in general or because congress is statute says you have to comply with the state laws you're saying it's impossible maybe you're right maybe it isn't the gist of it let me just give you an example of how this authorization principle should work and why it doesn't work here far broader recognitions of state power have been held not to authorize clause violations for example section seven of the bank holding company act explicitly gave states continuing power to regulate bank holding companies nonetheless the supreme court held in lieu of the investment that the act of not authorized a florida statute of violating the norm accompt to to violate the dormant commerce clause because it didn't speak to the dormant commerce clause problem that was created by the state law instead it said that that act that that banking act try this one of these state law allegations in this case are not just about the minimum wage they're about over time they're about bank waits bank wage statement cases so this certainly doesn't speak to all of those other things ok time so it's not that difficult to figure out on those forty days she didn't leave california she lived there the sky west chose her domicile they chose her base that's where they put her they could have put her in illinois they didn't she worked fifty eight hours one week she didn't get overtime and yet this is the person who doesn't give her overtime magically or right and under fel so so we do feel like we have a viable state wages the other thing about it is the dumbest airline chooses the domicile if they want to put all of their or their chicago flight attendants in springfield and