found in section one of the federal of attrition act the district court in this case erred by finding that miss east this was not a transportation worker in particular the error of the court was found in the standard that the court applied particularly the court applying a standard that limited the transportation worker exception to only the transportation of goods not the transportation of passengers that's important in this case because mi a twenty six year veteran of the airline industry and in particular she worked as she worked in houston bush intercontinental airport as a supervisor for ticketing and transportation worker and therefore exempt from the f a a first because just like railroad workers who are a numerated within section one of the act of airline employees would fall under that same enumerated exemption that's our st submission to the court secondly we submit that if that's not the read the briefs there's been a lot of discussion of circuit city v adams a supreme court case back in two thousand and one in particular in that case one quote the supreme court said we see no paradox in the in the congressional decision to exempt the workers over whom commerce their commerce power was most apparent seaman and ruler of workers were specifically enumerated in the transportation worker exemption because the supreme court pointed out there their power to regulate in interstate commerce was very apparent as to see many railroad workers same thing applies to airline workers back in  twenty five when the federal arbitration act was enacted the airline industry was just getting started doesn't it it doesn't i mean it seems obvious that they wouldn't have included airline workers because that wasn't that wasn't a big deal at the time of about ten years later when the airline industry kept going and was growing and became obvious that they were going to  become just as if not more important to railroad workers the railway labor act was amended to specifically include airline workers and that is the basis of our additionally another another quote from the circuit city case circuit city case the supreme court said it is reasonable to assume that congress excluded semen and rammer brokers from the f a a for the simple reason that it did not wish to unsettle established developing statutory dispute resolution schemes covering specific workers i'd mention a couple minutes a few seconds ago about the railway labor act that  going to argue that missy's does is not subject to the railway labor act in that this arbitration agreement in particular in this case is not governed by the railway labor act and we agree with that we agree that we underneath our so we don't we don't need to show that the arbitration agreement is subject to the our life we also don't need to show that this particular  would disputes with railway workers railroad workers to the extent that it's covered under the railway labor act it just is a blanket exclusion of railway workers and in the same sense we're asking this court to that we we don't need to show that it's not that it was not covered you don't dispute it i said that the arbitration agreement itself is not covered is not governed want because the arbitration agreement that's in place procedures that have to be put in place to have an enforceable arbitration agreement under the are away for example there there has to be a specific number of arbiters that are defined  but i don't want to get lost on the specifics of the railway labor act our our position i want to keep very simple specifically the road workers are specifically enumer d by congress in section one ten years after after the undocument of the f a the railway labor act was amended to include airline workers therefore cut of the supreme court's reliance upon that legislative history to that end in circuit city makes a reasonable inference that we could attribute that same status to airline into play when we talk about proximity and i don't mean to be avoiding your question i'm trying i'm trying to get there the nd the nd argument that we have under the residual clause that deals with the issue of proximity to the actual transportation i'm sure the courts looked at a number of all of the cases that have been cited that deal with who what specific employees workers are exempt and which ones aren't for example i think that we can all agree that if you're actually physically driving a truck across state lines carrying goods you are a transportation looker  i don't think even though the transportation workers exception is supposed to be narrowly applied and nearly construed if the transportation worker exception only applies to the individuals who are actually driving the truck flying the plane across state lines that is an extremely narrow get with correct in the end and longs for workers you know working on the show or just like she's not on on the plane right there loading on the dock loading the ship right there loading the ships loading the docks of the difference between miss east as is in the the proximity and specifically in the activities that she's doing and and i i analyze this there's a difference between an individual who's loading a ship loading a truck and missy's this who has very key responsibilities for security of of planes and passengers she's checkpoint i've seen that the ship workers have the same sort of thing they met but on average but yes that is correct but in terms of and our argument is that you you can't separate the facts that missy's to us in the airline industry is some inherently transportation related it in particular what i mean by that is there are a number of cases that deal with individuals who are loading trucks might be loading a truck at a manufacturing facility manufactured a widget that certain employees within that  factory manufactured the widget and which clearly not transportation workers but if i'm employed by the same company and same factory and i'm just i just happen to be working in the shipping department loading trucks that that's distinct from miss easton's who is working in the transportation industry the sole purpose of of her job is to transport people from a to b what is the purpose of loading a truck learning about i think it would depend on are we talking about goods to move interstate commerce the same thing it would be agree that the transportation of goods clearly satisfies right so then that would be your principal contention i took it in response to the chief judge was are clearly excluded i don't understand how someone who at the best is looting plain would be included i proceed to question your honor the difference is the fact that well two things there is more involved in with loading people on the plane than loading boxes there's more danger especially these this day and age that's involved that a verified entities yet verify of you know weight i mean if we're talking about airplanes so forth so there's more involved the the nd point i make is there has to be a distinction between whether the company itself is particularly their particular purpose is to transport within interstate commerce versus that's an incidental purpose and i go back to my example of the manufacturer incidentally shipping versus you know there's a few cases in here that deal with you know like airborne express whether that's your particular pope's i do want to make sure that i hit on one very  thing that i think is most important when we're talking about goods talking to passengers above all i encourage the court and hope that we can come to a consensus that the rd circuit in saying we replies significantly holds that we're not just talking about goods we're talking about passengers i think that's supported by just the supreme court in circuit city because that case didn't have anything to do with  well that was a much broader is much broader issue the issue in circuit city was does does the exception apply only to transportation workers or all employment contracts   so i'd like to conclude my initial time with with not that we haven't talked about it much but the under the residual clause i asked the court finds that the residual clause is not limited to just transportation of goods but also applies to transportation of passengers got the  exception to section one did not apply to misuse just because she did not engage in the type of work that railroad workers are shimon would do in the carriage of goods that is a correct statement and that's what this court held was dispositive and robust citing the six circuits opinion in this one but that is not dispositive of the issue before the court in its entirety here today because despite the representation that ms east this may have worked in the airline industry before she went to work for i assess she was not an employer of a transportation company and the employment cause of action that she's alleged is against a services company and to the chief judge's question that's really why the r l a does not apply the our l a authorizes to alternative dispute read resolution i have to find it apologized the shipping commissioner's act of eight hundred and seventy two which the supreme court pointed to in circuit city none of those apply because ms east is didn't work for a company that's involved in transportation indeed missy's to seems to test the outer limits of the well stated proposition of the district court in the rents and versus with transportation in the district of kansas that quote in theory all employees could trace a relationship to transfer to a transportation worker and if the court were to accept ms east as proposition all u p s drivers all federal express drivers all people who load federal express and u p s packages would be subject to the transportation exception the people who work at the restrooms and the newsstands on the what they call the airside past security in the airport would also be transportation workers because they actually provide greater more direct services to airline passengers than ms east is ever did the record shows without dispute that i assess is a staffing company not a transportation business at all that's a twenty five dollars of the record company is involved in facility management cleaning and janitorial services security services property services catering and other business support services missy's this was not a transportation or rather she was hired as an account manager that's it record twenty five i'm sorry record ten they assigned her the work of managing other s s employees who actually did the work of ticketing and gate agents assigned to move towards a i assess customer the specific job that ms east is was assigned to do for i assess as set forth in the record it's undisputed that one hundred and fifty five and one hundred and sixty six and that was recruiting hiring training and supervising other i s o s employees her specific job functions were payroll budgeting and clerical work and in fact ms east is wasn't even in that role during the last three months of whom plummet when she elected to resign claiming a hostile work environment for the last three months of her employment diseased as had been removed from any relationship to live tons of whatsoever and she was doing processing and billing and payroll for i assess as well as ad hoc administrative work that's also undisputed at record fifty eight at the closest they ceased is condoms she was a supervisor of other people who assisted people in connection with passenger airline travel be even before the supreme court's decision in circuit city roughhouse which respectfully binds this panel forecloses misused as contention that the exception in section one applies to her goods in commerce now of course the supreme court later in the circuit city cases adopted the same proposition and further counsel that a narrow construction of the phrase actually engaged as this in the same way as those employees are employee and the northern district of illinois held that she was not subject to the transportation with her exception because what she did was supervise the people who loaded bags on to the southwest airlines  by the northern district of georgia not between petition workers and as the court knows the new york supreme court in two thousand and eleven held pilots for jet blue are not transportation workers now if the pilot flying the plane is not a transportation worker obviously the person who supervises the people who take the tickets to allow them to be on the plane is not a transportation or did i think the misused this is even less a transportation worker th the the court has determined the supreme court has determined that the reason congress carved out transportation workers seamen and railroad workers was because of the fact that congress had independently seamen respectively it is that distinction that holds here and to the extent that ms east is must acknowledge that she is not subject to either of those independent legit or legislative schemes secondly because she doesn't have a collective bargaining agreement with her employer which is where they are at least provides an foresman of alternative dispute resolution procedures nine u s c talks about railroading or ease what have case law does fund specifically railroad employee yes i'm not familiar with and in research and did not find it a delineation of railroad employees in terms of where that line is drawn if that's what your honour's asking but railroad employee right i think the answer to that though then lies in in in the very point raised in by the supreme court in circuit city and again reaffirmed by last year's opinion in new prime and that is it's not so much the definition of that employee but rather whether that person is an employee whose dispute resolution push ija has been legislated separately by congress and that's where the supreme court explained the distinction in the requirement of used them generics in the circuit city case the court explained that the reason for that carve out an exception was because congress had independently legislated as to those class of workers so perhaps in answer to your question chief judge that it's not so much what the job is for the railroad but whether that individual falls within a collective bargaining agreement that provides its own dispute resolution procedure which is what the circuit city court and then again the new prime court said was the important distinction as to the exception i would respectfully submit that while the court should follow its own precedent appropriate test it should affirm the trial court's order compelling this matter of a trace and i would i guess it's probably worth noting that the sing chase is out of step with the supreme court's holding in circuit city and with respect to the author of the opinion it seems to take great penn pains to try to distinguish the circuit city opinion as merely dicta as opposed to a supreme court holding by which under which the circuit has balance the it's also notable that in that case the court was considering a twelve b six issue and therefore purposely confined itself solely to the pleadings and indeed remanded the case to determine whether the tube or driver in question was pushing was engaged in interstate commerce i don't think it provides any help to the resolution the question before the court particularly in light of the fact that this court has controlling authority on the graft issue i appreciate the opportunity thank you very much that we call attention to that at this stage procedurally case was filed in the st thing that was done was this motion to compel arbitration under that procedural posture of the court is sold to a standard of motion to dismiss  of i won't belabor that point but if you have questions i'm happy to go further into it but the nd i think we have to again and we've addressed this in the brief so i also don't want to belabor it but the distinction between goods and passengers i think is of incredible importance for this court i respectfully disagree with mr health and when he dismisses the single case  a more in depth reading of this court case and rojas and the circuit city case again those deal with employees who work did not have anything to do with transportation it was a retail worker at a circuit city at lac tronic store in california it was destructing in san antonio the question had nothing to do with actually transporting goods it was more it was a much broader question is that is section one exemption limited to transportation workers or does it apply to all so that wasn't the specific issue and circuit city  any reference to goods within certain city was dicta it was just a choice of words it would have been more difficult to write in the reed say goods or passengers when passengers wasn't even didn't  out taking that one step further there were a number of cases cited but i want to go through a few because once we get past the st hurdle in the residual clause analysis that we that it does apply to passengers as well as goods i used the word proximity before the next question is is that transfer is that work or are they closely enough related to the actual transportation t actual movement of the jet blue case i believe was a state court case out of new york that said that pilots are not not not exempt that's a prime example of the importance of the st question the goods versus passengers because that case with respect to the court was just incorrectly decided on one end of the proximity question  have like your destructive you have your your circuit city employees clearly not transportation workers on the other end you have truck drivers we submit you have pilots that clearly are actually driving or flying the of the plane across state lines those are your two extremes in the middle you've got a bunch of different examples and there are probably twenty of the cases that were cited in the briefs dealt with that  for example transverse texas lincoln mercury it's two thousand and seven so the district of texas case dealt with a finance manager at a car dealership deals with those cases with you know security before preet nine hundred and eleven so there akin to your t s a workers go through the airport there their job doesn't have anything to do with getting people on to the planes doesn't have anything to do with  verifying their identity so forth and so on it's security it's important but it's further removed from the actual planning missy's to supervise the gate agents the people that were the last people that you saw before you got on the