good morning your honor may please the court i'm david solomons on behalf of amazon this case concerns whether local delivery drivers fit within the federal arbitration acts limited exemption for classes of workers engaged in interstate commerce the supreme court has provided three rules that must govern application of the exemption st you stand there today assume then the burden of legal errors that the court below made for this court's benefit but we do think especially given that there's no dispute that the coverage provision of the act is implicated in other words the underlying transactions involved commerce that drivers cross state lines we don't think would be appropriate for a number of reasons one of which is that plaintiffs never asserted any fact based issue with regard to the exemption never asked for discovery  so i do think there are ways in which it may come into play your honor the fundamental error the court below made was a disregard of these three rules the supreme court has provided the st of which is you must give the terms of the exemption their ordinary meaning as of  matter your honor of taking into account case law but that what the supreme court has held both in circuit city and new prime is that the exemption is term should be given their ordinary meaning as they existed at the time it was enacted which was  twenty five but you're not suggesting that for example new prime all of course we've got all kinds of cases in it though a local kristy and ward that deal with whether or not you have to cross boundaries which i find perfectly a pleasurable and that we're all governs and then the rd rule the supreme court has provided is that you have to construe the exemption narrowly so as to avoid undermining the x broad coverage provision and pro arbitration purpose so those are the three principles what the court below held one thing and what you rely for that last principle which case circuit city your honor makes you think that's what circuit city says it does your honor it's says that the exemption has given a narrow construction foreign or interstate commerce correct though if controlled and defined in reference to the categories of workers which we've already been cited yes your are they then are exempt from the scope yes your honor what the supreme court of circuit city explained is that the reason for the exemption is to take into account the congress already hadn't acted or might enact in the future specific i ask you that question there would have been railroads which would have been exhibited existence at this point in time which would have been in  eight railroads now the words not railroads going like the union pacific or the northern or whatever but they just were within the different states would they be subject to the exemption so i think the answer is no your honor not let me walk you through why that is st of all i mean it seems to me that if i just look at railroad workers i very easily could examine all railroad workers i think that would be incorrect that would be inconsistent with the principles that i just articulated for how to construe the exemption were to do so and i would one thing in particular i would emphasize for the court that it's workers engaged in interstate commerce and so i think it's see men and railroad employees engaged in interstate commerce as well because the cuts also the other workers other classes of workers and gays and interstate commerce so it's clear that congress meant for the defined categories seamen and railroad employees to be engaged in interstate commerce in the senate but just a minute if the railroad union railroad hires bring supplies to railroads in idaho and veils railroads in idaho deliver those interstate commerce goods to the individual pillsbury companies in idaho they're in gauged in interstate commerce the grain came from all over america it came to idaho it was delivered to an idaho railroad and then it's given to the pillsbury other places yes your honor he let me try to answer you both in terms of historical principle here because we know what actually congress did with regard to see men and railroad employees i think can add some light as t congress intended by these categories and then also by st principle you're saying if congress didn't do something about it otherwise then our interpretation should be different no i'm just repeating what the supreme court said in circuit city your honor which is at the point of it was important circuit city but i didn't find anything which would lead me to believe looking at what they did in circuit city that that railroad which only was an interest state railroad who delivering this commerce which came all away from wherever it is to idaho to feed the idaho cows would not be i don't think the supreme court in circuit city had to get into that level of detail with regard to history the answer i'm giving you however is that what the supreme court in circuit city said is that the point of the exemption is to give room for those specific dispute mechanisms that congress had already enacted with in the case of seamen and railroad is the transportation act and if you look at those clear congress was not concerned with arbitration for workers that were primarily engaged in local activities for example with regard to seamen the shipping commissioners act as it existed at the time the f a a was an act that specifically provided that none of the provisions of that act would apply to vessels in gates in the coastwise trade so if it was just shipping up and down one particular coast with frequent stops imports they were not covered by the exemption that congress passed for their say in the same thing with railroad workers i'm not sure that's true i mean i'm trying to see what you're really saying to me is if somebody works for a union pacific and does the same thing as the idaho railroad does they'd none the less would be subject to this problem but if in fact you work for an idaho company and you take the goods at the idaho state line and deliver them interest state goods inter state goods that now all of a sudden you're not subject to the exemption no someone saying your honor and if i could just make this point i think it's really important this is the fundamental error that the court below made was it looked not to the activities of the class of worker at issue which is what the exemption directs the sole analysis for application exemption be focused on it's about the activities that the workers are engaged perform the activities are the same no your honor this is my point activity if it was all i mean here we've got this particular situation where we've got these amazon people if it were amazon workers in the amazon company who are delivering these same goods to these people rather than these particular ones who were from an independent contractor who had signed on then with amazon to margaret let me try it one more time the focus is on the activities of the class of workers are engaged to perform here the class of workers a gauge to perform local delivers it does not matter that they happen to be him whether they are employed by or contract with amazon or smaller company or a local florist or home goods store the class of workers we're talking about are local delivery drivers they perform overwhelmingly local the liberty that your best argument that these are just handling local deliveries is that your best argument i do think it's i think combined with the text and the principles i've been talking about it well that that's the case where does the stream of interstate commerce and i'm sorry you're under the sort of where does a stream of interstate commerce in following up on what my colleague said you got a path back it's from a merchant in new york through amazon and they come here and they deliver it to the local folks does the stream of in when amazon delivers the package or does it end when the in the in this case an independent contractor delivers it to the person who bought it so this is the critical point your honor the the analysis here doesn't turn on whether the products are in commerce or there or whether they're part of interstate commerce yet so you're saying textual ism doesn't matter what i'm saying textualism doesn't matter in the text will is and tells you to focus on the activity of the worker not how the goods traveled in interstate commerce section one is covered provision the focus is on the transaction and its connection to commerce section covered section one's exemption tells you to focus only on the activity of the workers one of the fundamental problems with the approach adopted below where the focus was on the where the products traveled or the size of the employer and its connection to commerce is that you get inconsistent results depending on whether you're talking about  transporting goods or people what does it mean for a person to have originated or been transformed in another state with semen and railroad employees there either interstate workers or they're not regardless of whether shipping goods but i  thought you said earlier you don't want to send this back to the district court for an analysis of how much of these people how many of these people are just dealing intrastate as opposed to interstate well that's correct we think that we think that what in order  oh i don't think i'm trying to have a both where you are because you're saying if they're local you know they're not covered that congress never intended that nine hundred and twenty five and that was there when my colleague knocked about in terms of the grain and the railroads and so on i'm using a different example but the fact is you're saying interstate commerce ends before these people are involved it is the stream of interstate commerce i'm saying their activities are not in interstate commerce they are not ask case that you had that says that well i think circuit city the principal circuit city get us there i would point the court to the supreme court's decision night which is a case involving the constitution on the line that's drawn there but i would i would most polanco christie and ward at least those that are saying that what if he doesn't you don't have to be dealing across state lines to be involved in interstate commerce what do we do with those cases well the so the plaintiffs tied to a variety of cases all of them involve statutes that are fundamentally different than the statute and they have been given broad construction where here the supreme court has warned against any broad construction the focus is on the activities of the workers are they engaged to perform interstate commerce in the same way that seamen and railroad employees are and the proper interpretation for that is whether they are engaged to for long distance transportation services in the same way that seamen and nonetheless supervising people who are in fact transporting things interstate commerce i took your position to be that those people may well be engaged in interstate commerce as well that's not the question before the court but there are a number of cases involving the supervisory role i don't understand your position to be inconsistent with those cases well i think that's not an issue in this case i think the difference here is that if you take the poll to be the rd circuit's decision  it it focused it presume that there were interstate transportation taking place and then there was the connection of the supervisor to interstate commerce here these drivers have no connection to any interstate transportation of goods of self and they just make would not be subject to the exemption i'm saying that as we might otherwise think of the term so i think again what you're really saying is this is the reason i'm focusing you what you're really saying is there are s workers and there are railroad workers who you say do not receive the benefit that you that these other people would like to have they are not interstate workers either and they therefore would be under the same situation are you sir i really are making that argument well let me be very clear so yes and here's why well give me a good case but i'm saying it seems to me reading what your argument said in your brief that semen workers and railroad workers were involved in interstate commerce well there say you want to see men that were engaged in interstate commerce congress provided an alternative mechanism for and that comes from the supreme court's decision circuit city if you look at the alternative the congress had already provided it only applied to seamen that were engaged in long distance put in the catch  that air commercial air workers are covered by a subsequent amendment to the way labor act they're covered what's not covered are local delivery drivers who it's mere happenstance from their point of view whether the good that they are delivering traveled in interstate commerce before they pick them up or not local police a pizza delivery drivers local florist delivery drivers and local amazon delivery drivers are local drivers that are not there's a little difference there than the little local pizza parlor may be only in business in that state flowers who knows every sound that we do understand but amazon is one of the biggest companies in the united states maybe in the world it's again your honor is a fundamental mistake in terms of statutory construction you do not look to the identity of the employer in defining the exemption but when you look at the activity of the worker employer does and the nature of its been this is critical is it not for purposes of the are small company like a mom and pop store close by or some other retailer that what you focus on is the activities that the workers engage to perform and from the standpoint of local delivery drivers they pick up in their local area they deliver in their local area and the path of the goods before they pick it up is entirely happenstance from their point of view you agree that the records show that at least some of these people have been doing interstate libraries so in terms records thirty two dollars this is the only one they've identified and it's from a fellow by the name of the wayne johnson who says that after years of being engaged as a local delivery driver for amazon in the new york city area which has state lines close by that on one occasion he crossed the state line during a two hour delivery span where he made eight deliveries one of which just happen to be across the line in new jersey and that is all that they have put in in terms of interstate crossings more fundamentally even if there are interstate deliveries are de minimus here and the supreme court has urged against erecting initial inquiries and barriers to arbitration that require fact development that are hurdles that must be pass or early and because it defeats the point of arbitration it's the court has also urged against making the enforceability of arbitration turn on what from the standpoint of the f a a is mere happenstance and with respect i would submit that the path of the goods before the local delivery drivers pick them up and start their activities is mere happenstance from the point of view of the f a a because it directs that the inquiry has to focus so excuse me soley on the activities of the workers and the activities here are overwhelmingly local i think argument please the court my name is harold my brother is simply wrong that you look at the worker you look at whether the worker is in gauged in the flow of interstate commerce well the statute doesn't say that th does it it says class of workers engaged in interstate commerce and if you look at circuit city circuit city said repeatedly that you look at whether the workers are engaged in the flow of interstate commerce and remember the plaintiffs in circuit city just worked in the store the supreme court had no problem with that part what they said is that person was in the transportation worker so you have to be a transportation worker and you have to be engaged in the flow of interstate commerce if you look at that and it seems to me you're reading a lot into that discussion about engage in the flow because in the in the context in which that comes up in circuit city what the supreme court is telling us there is that we're going to interpret some of these terms restrict ely and so it seems the law had to then take from that discussion a broadening of the evan exemption in the f a a i just don't think this i mean the flow portion of circuit city really answers this question when i was just saying that circuit city my brother spoke about circuits that it speaks about the flow of interstate commerce but i don't rely on circuit city for this proposition i one thing we agree on is that you have to look at what congress intended and what was the state of the law in one thousand nine hundred and twenty five that's critical and twenty five there was a body of case law developed by the u s supreme court interpret being the federal employees liability act which required even for railroad employees and seamen that they be engaged in such interstate commerce and that they injure themselves while engaged in such commerce so it's was very restrictive and there were many cases relating to the defendants claiming that the person had not been injured in interstate commerce and the supreme court resolved this issue in a series of cases and i cite to you the show thanks case which is in public justice's brief the baltimore o s w ark case versus birch where the person in that case was only picking up unloading freight afraid stations sort of like a good worker in the th ninety's because they just got some townspeople to come in and unload freight and the court found that that person was entitled to sue under philo because at the time they were unloading freight that had been going through interstate commerce and therefore that was interstate commerce and most importantly is the hancock case from one thousand nine hundred and twenty just five years before this statute the f a a was inactive and in that case the workers in question simply got coal from a coal mine and took it to the rail yard totally interstate and the employer argued that they did not have to cover that person under filo because that was purely interstate activity and the supreme court said no that coal was eventually destined for other states therefore those workers were in the flow of interstate commerce that's just the converse of what we have here think about what we have here  amazon says in its brief that they used to use u p s united states they also used to use the united states postal service they used to use fed ex all of these workers who would arrive at their station fedex or s they would load up their packages their amazon packages and then they would do the last mile delivery now there's no question that these packages were coming from all over the world there's no question that the defendant here is amazon logistics  we've cited to you we put in the record what it would be different then if the if the workers worked for joe's local delivery service they were not part of amazon amazon had an arrangement where as soon as the goods came to the seattle warehouse they would turn them over to the custody of joe's local seattle delivery service and all these workers were employees in that company the answer is no because st of all that was expressed they rejected the ward case which is express messenger i think is the all the cases look at where the products are coming from and whether they're still in the flow of interstate commerce so let's say i am a zhan has products coming in from all over the country and then contract with joe's like you say joe's is still performing the last mile delivery that package is still in the flow of interstate commerce until it reaches its home the only cases that go against this proposition of the cases like caviar and door dash that's because the came the products came to rest at the restaurant and according to the courts i'm not sure i agree with that the courts are what they were then transformed into hamburgers or hot dogs or meals and then sent out and so they lost their character here the packages start out as one thing and when they're delivered to the door they're the same thing they're within the flow of interstate seamers don't you think that if your position prevails here it would be very difficult to distinguish it and who eats or a because they too are taking products from elsewhere perhaps they're just reselling them like a can of coke but or maybe they're doing some modest work on them but it really seems to me that would be a difficult doctrine to start applying as as to how much that food was cooked in a restaurant as opposed to just passed on well i don't think you get to that issue here because this is amazon and amazon is the world amazon  itself in being one of the world's largest if not the largest logistics and package delivery business in the entire world so you don't get to that here there are other cases as i said there are there are some cases involving door dash and caviar where the court doesn't look at that and says i don't find these people are really transportation workers as congress in vision because they're not really carrying products that are remaining in the flow of interstate commerce those there are those cases but i would point out and judge smith pointed out several cases every circuit that has addressed this question and at least ten district courts have addressed this question relying on these cases from  and i don't even get yet to the interstate commerce commission cases from one thousand nine hundred and twenty five say because you look at the character of the flow of goods and whether the individual is involved with the livery or unloading or transportation of those goods they qualify for the section one exemption i guess that is a section two that uses the phrase involved in that you just referenced the section one says engaged in that season and gazin is different than involved in that so it well that was the same like with all due respect that time and there are a couple cases from one thousand nine hundred and twenty five that we point out in our brief such as the shanks case where although they say that if you're involved in interstate commerce in him only in the congress even though you're not crossing state lines you're still protected under feel it but they pointed out in shanks for example that the person although he worked for a railroad company at the time he was just fixing a machine shop and therefore he didn't have anything to do with goods here all of our workers it uses the term engaged in such commerce it's the exact same language in my my worry are you through i'm sorry i'm glad that my worry is with hard you know the hardened versus roadway package just yes i do ok in there we talked about the examiner's application and we it said it depends on whether the workers are engaged to perform interstate transportation now these workers do not seem to be engaged in performing interstate transportation they seem to be engaged in performing transportation right there in the city they're engaged in hand  they get these goods that's why i was after him just a little bit all they do is get these goods and then they're totally engaged meant has nothing to do with whether they're interstate or not all are supposed to be doing is transporting goods around their city they may go to new jersey was in a while they may even go to i don't because we're out in the sticks from from salt lake but they're not engaged in interstate commerce at all they're had now i just sit and determine whether that's whether they're having interstate go no there's no question that amazon is no question that was on says in its papers that there's no question the thousands and thousands of packages are handled by these drivers they come from other states there may be some a few minor numbers to come within the state but their main goal is to deliver under the amazon system and those packages when you go online in order they're coming from these large factories or places where amazon has these pipes i was on also uses this partnership arrangement where sometimes it's coming from private companies that just use amazon as their as their platform there's no question that the products are coming from out of state and they're still as the supreme court has said on numerous occasions to still within the flow of interstate commerce when they're being delivered and it's because of that as i said that every final receipt of interstate flow of commerce that's all they don't they don't make it but how would you square that with the us supreme court decisions and all of these feel of cases where the workers some were just they a rd circuit decision for the ninety four dollars which we cited to you they relied on the feel of cases and interpret ing and interpret ing that have been at the supreme court i can't think of  supreme court case that has used the feel of cases but but i think the again if you're looking for what congress intended in one thousand nine hundred and twenty five then we know from new prime that and that's what the worse it said the proper thing to do is see what was the state of the law in one thousand nine hundred and twenty five by nine hundred and twenty five it was clear both of these feel of cases and these interstate commerce commission cases that engaged in a state commerce had nothing to do with crossing  but if what if the statute just said engaged in foreign commerce and you had somebody who shipped something from china toss angelus and then a ship or took it and took it from los angeles to new york and it was then transport from new york to europe and we're talking about the person who's crossing all the states all the united states by truck but the question is foreign commerce would you describe that that person who's just driving a truck across the country is engaged in we wouldn't want to take a position on that because you wouldn't have that history of cases under the feel an interstate commerce commission that dealt with this question time and time again i would also point out that this is let every district court kristie easter day ward with fico hammer austin the eto the more i know are all these district courts including the district court in this case in the district court in massachusetts and i'm arguing the same issue before the st circuit on thursday they've caused them all to say that these workers these at amazon workers or workers and gauged in local deliveries or engaged locally do not have to cross state lines to be involved in a state commerce that's their essential argument the defendant there saying you have to cross state lines and that's just not the law it's never been the law and i submit you know we read circuit city also talked to dent their argument their argument is that they are not interested commerce workers never were intended to be their local people and whether they incidentally klos the state line or not has no effect what they're saying is it's what they do and what they do is to live and that how they're even saying not even what they do if they're a railroad worker but not only what they do if they're a seaman worker it's what they do incidentally that's it y what they're suggesting and what they're doing is the last mile of one of the biggest interstate and foreign enterprises in the history of the united states they are delivering products that are in the flow of interstate commerce one of the things that lends the a circuit suggests and one thing the supreme court suggests is one of the things you might want to look at is what would be the disruption that would occur if these workers were not doing their job because that's one of the thing the supreme indicated in new prime was on congress's mind not having arbitrate forced arbitration it would disrupt if you had a complete cessation of packages going out from amazon the whole system would break down there would not be the free flow of interstate commerce for amazon because nobody would be delivering these packages this is how these packages get to the last mile it's no different than the st mile i do want to quickly address out of time so please yes the  one question you haven't addressed is whether the court was correct or not and defendants haven't raised this in their argument about finding that because there is an express exclusion of utilising washington state law whether they stuck with that judge now or said that they were because they specifically excluded the application of state law i thought decision i think is correct they can't have it both ways they did it for a purpose they didn't want to be stuck with what was very progressive washington law and this agreement came in two thousand and fifteen where wasn't clear where the supreme court was going with arbitration and therefore having said that the washington law does not apply to the arbitration clause they have any you have any time i don't think you do to and i don't think they did reserve but i don't think it was i don't think so that let me just ask my colleagues do either of my colleagues have additional questions that they want to pose to either council you know these are infinite numbers vall done a good job in your briefing and we appreciate that very much so let's leave it at that we thank you both for your argument the case just argued is submitted to the court stands in recess for the day