damage verdict and i feared that this appeal may seem a little hung drawn and then my nd thought was this appeal raises a question essential in every core across the country within the circuit which is the  stopwatch from raising what we call a reverse miss class kit misclassification defense under the fair labor standards act it should be noted no court that we have ever found in my practice lines area has ever allowed a reverse mi classification defense but they have described them as a defense in which the company classified as a matter of fact and in this instance in the written employment offer letter the position as one that was not exempt from federal wage and hour laws and that is explicit in the record here you said the word explicit i read every time i read it i hesitate because it's just contradictory you'd reach contradictory the clause and the defense here is it is exempt i think it's easy to see why defense should be a stop the nd clause is which means you will be paid overtime or you will be eligible for overtime that's also consistent you know that's a course in fairness don't you  misleading in its mistake which is it purports to define what federal wage and hour law requires for nonexempt employees over time it then defines the number of hours after which one would receive overtime incorrectly and fact that's precisely what occurred in this case if you look at the rawest worker affidavit in the record he says i was under the impression that i would be protected by federal wage an hour law and in fact that i would receive overtime it's only  discovered that the eighty four hour every two week overtime pay policy was probably not right and it took contacting wage an hour lawyer to find out whether it was or was not i think the record doesn't show  this record i don't know that we have a system which says if your employer in this case you know of a large reputable company that employs lots of people has its own h r department puts or h r manuals in the light offers you a job and purports to classify that job or does classify a job and purports to explain what your overtime policies would be that any lay person would say well i'm not sure is that really what the federal law requires for overtime do i need to contact a lawyer to is that a lay person i think without legal training would look at the eighty four hours and say all the facts that's the more specific advice that's what governs me i don't know many people th pretty pretty quickly but there is a reasonable diligence standard the supreme court has a heckler case acts like there's a reasonable diligence standard on your client yeah i mean the heckler cas is maybe not a great one to derive a broad principle of equitable stop a law given the facts of that case in that instance the written statement clearly said that the  whether or not the written statement was accurate at that point i think it's fair for the court to say look if you received two conflicting piece of information of this written letter which purports to define your benefits and then use your benefits coordinators discussing perhaps that's an error at that point you need to move forward you can't just pick one official statement over the other and here all we have is the single written offer letter there was never any discussion that was inconsistent with the classification of the position as nonexempt under federal wage and hour law and in fact the deposition of the company showed that this was a consistent statement given in all written offer letters to anyone in the flight paramedic position what this court has said in berry versus garza and d op are much closer to the scenario we have here in that st case the company had always portrayed itself as having on a risk of funded employee welfare benefits plan and then when the trustee of that plan brought suit because of underfunding the company tried to disclaim that it was actually a risk the government and raise the defense of a lack of majority status and this court affirmed to stop all of that defense similarly in the duty case in that case though the person couldn't have known couldn't of exercise reasonable diligence right and my reading if i'm thinking about the case correct well i don't know that  with we have words like that don't we in the opinion that they could not have acquired the truth risk with reasonable diligence yet in that the truth that the company majority yet actually i don't know that reasonable diligence really could factor into that case is that something that the the member of the welfare benefits plan could have ascertained that the that there was no majority status probably not whether they had exercised diligence or not right so i don't know that that factored in here the similarly there is no opportunity to exercise diligence the company has offered a position that classified the position they've explained that over time will be paid and it's only their method of paying over time which is unlawful and the discovery of that illegality that that results in th common law dating before the founding i think congress understood that judges courts across the country know what common carriers are and in fact virtually every state including missouri which is where the companies based so i think sort of the the parties in the court agreed we would proceed using missouri's definition of the elements become a carrier they're consistent which is indiscriminate transport of any member or definable segment of the public for hire that someone raises their hands as i like to be transported i'm willing to pay your fee and so you  so that does not really involve the introspection of the f l s and the railway labor act at all neither of those cases due to the contrary they involve the intersection of the airline deregulation act and potentially other federal laws and so the airline deregulation act defines air carrier and it defines it broadly and it's in the statute and it says that an air carrier is quote a citizen of the united states undertaking by any means indirectly or directly to provide attempt by states because medical helicopter emergency transport is very expensive tens of thousands of dollars in most instances and it's usually out of network it's not covered by private insurance and there was an attempt by states to basically cap the amounts it could be decided cases is that if the air carrier is defined so broadly to include anyone providing your transportation directly into indirectly there's no question i hella copters before providing air transportation has to have an f a a what about the flight statement in cheatham air ambulance companies fall squarely within the definition of common carriers period i'm sure you're familiar with the sentence i am if we went with you would there be a conflict with us in the th circuit i don't believe so because that's not the holding of the case in fact it's incredibly unnecessary dicta in that case it was i think a novel argument in fact i think the preceding sentence of the opinion says this is a novel argument by the state in an attempt to try to wiggle out of the definition of air carrier and the state i think was enterprising saying well if they're not a common carrier maybe they're not an air carrier at all which really reverses the analysis air carriers are clearly as broad as it can get any air transportation whereas common carrier has a well known don't think they do i think it's an inquest of that discussion but that was really a result of the state trying to develop a novel way to escape this definition the court having i suppose to deal with the argument in some way although it doesn't affect the holding of that case the it's preempted and there was no record built in that case of regarding the elements of common carrier perhaps if there had been if the state was really going to make the case that hearing letters are not coming carriers and judge here's all of our evidence for why  which is what we've done in this case the court that there may read quite differently in fact it might have said something like whether or not it's a common carrier is irrelevant because we have a statutory definition which says any air transportation we don't need to reach the issue and that was probably a re are not common carriers they only hold themselves out if it could even be called that there really relationship building with hospitals nine hundred and eleven service operators in order to receive the dispatches the same as a relied on to his detriment but there is no evidence that plaintiff reasonably relied on the time nonexempt as used in his offer letter in fact to the evidence is the opposite the op or letter described nonexempt as meaning th but there is no evidence that point if you knew the term of art or that it or plaintiff knew that it didn't match the description of it in the offer letter in fact in his briefing point if admits that only a wage an hour lawyer would have known enough to up i do want to correct one thing counsel said that his client had an understanding that the term non exams match that he had some kind of overtime rights there's no evidence even though that understanding in the record is declaration that cited doesn't say anything about that when you sent him a separate letter write the separate letter says the kind of overtime you get so tell me if i don't get your argument doesn't your separate letter make clear about what the overtime rights are there there is several sources that should have put that the only evidence of what mr rival's words understanding is is exactly as laid out in a lot of it says he's going to get eighty four dollars is going to get over the works and access of eighty four and two week right that's it there's no evidence he had any other standing that's my real point there's no evidence that he was even confused much less misled and even if you had known the term of  even if he had known the term of art as referring to his eligibility for overtime under the f l a say he could've reasonably readily relied on the term because the full context of the sentence itself makes clear that area that wasn't going to treat him as nonexempt under the f l a say if it had been if it was intending to treat him is not exempt under the f l us a it would have been talking about forty hours in a week ninety four hours in two weeks so he couldn't have reasonably relied on it and i believe your are made the point earlier that even if he was confused and there's no evidence he was even going to use then it was he needed to say hey i don't understand these things look contradictory but he didn't do that i understand why i didn't do that because he wasn't confused why wasn't he confused because he had no understanding whatsoever of the time nonexempt by itself he only understood it to mean what exactly as it was described which is exactly what he got and and there's also no evidence that even if he had understood it at all and somehow avoided his obligation to check into it there's no evidence that he relied on it in any way to his detriment there's no evidence he accepted the job offer or work certain hours or did anything else because he thought he'd be treated as nonexempt under the n f l s a and therefore eligible for overtime based on the forty hour week to the contrary point if it minutes in his briefing no reasonable person would have believed that he was going to get anything other than the eight overtime when he worked over eighty four hours in a two week period in other words there is no misunderstanding based on the letter the use of the term nonexempt had no effect on clean up there's just no basis in equity to a stop area evacuate from showing that the railway labor act point up from the f l s days overtime rules and the district courts equitable to stop the ruling should be affirmed and by the way it should be affirmed under any standard of review but for the record the proper standard of review here would be abuse of discretion the court question of reviewing in order granting arbitration to a non signatory based on equitable stoppel but equitable stoppel in those cases involves a completely different set of factors having to do with the connection between the arbitration agreement itself and the non signatory that explains why donaldson didn't mention duty vs norton alcoa and more over the issues in the two cases were obviously different because if they'd been the same the donaldson court could not have reached a different conclusion given the circuit rule against one panel overruling another all that being said the outcome of the equitable stoffel argument doesn't depend on any particular standard of review the plaintiff has no evidence to support his argument the legal right that plaintiff has tried failed to avoid with his equitable of stoppel argument is the over time exemption under the railway labor act that right belongs to any common carrier by air courts and regulatory authorities are going out of this that air ambulance companies like same thing the same service they were paying their employees overtime from working more than forty hours in a week that's not the same as saying that they were obligated to do that all they noticed by mr ruggles burger was that there was going to be a change which is further evidence of course that he should have known that this was going to be a different deal so there they were voluntarily complying with several law that they were segment of the public as willing to transport for a fee arie eve act hold itself out to hospitals in emergency services providers i and also to individuals and hold itself out his willing to transport nd injured people for a fee the when asked to by providers plaintive has not cited the single decision holding than any air ambulance company on these facts are any other facts is not a chronic area and offers no authority are either to support the three arguments that he does make all of which boil down to requires that the marketing audience and the passengers be want to in the same many common carriers don't carry people at all so planned of this clearly wrong about that multiple decisions also reinforce that point of this wrong about that court area balance transportation of medical patients for a fee to a definable segment of the public hospitals and fire and police departments it is therefore a common carrier by air and the national mediation board has found similar furthermore  alternative basis in his briefing the plaintiff i think has waived the holding out issue of holding out its issues a little deeper than that right because you have members they get protection against cost but they don't get any guaranteed that would certainly satisfy the holding out aspect playing a nd up nd argument is that area that just isn't going to take anybody who's willing to pay it has its own criteria as they say about who it will decide  to transport it is through that area that is not willing to just carry anybody who's willing to pay an air ambulance company but it's also true that the law is quite clear that a common carrier can define its niche as it se services agency makes the final decision plaintiff has made in his briefs is that every vet can't be a common carrier because passengers do not make payment arrangements before they are transported what the law actually requires is only that area that charges a fee for services the undisputed record evidence is that area that charges a fee for its services plaintiff doesn't cite any authority to support the argument that a passenger has to pay before the transport in this particular federal district court addressed and rejected just this argument finding about an air ambulance company called the compensation may come from rd parties is irrelevant and the mere fact that plaintiff doesn't collect tickets at the boarding gate doesn't mean it's not a common carrier plaint attempt to distinguish numerous cases including cheat on them on because they find air ambulance companies to be common carriers in the context of the airline deregulation act rather than the railway labor act that's there that's his argument but that's a distinction without a difference of cour analyzing both statutes ultimately look to the common law definition of a common carrier and that's not picked up either that was the state of west virginia argument and if we look if we want to really want to track the airline deregulation of definitions i think i did so in the briefs it's not victor because that was west virginia's argument they can't they're not entitled to eighty eight protection because they're not a common carrier for services yes they are common carrier that's necessary to the decision point of also was attacked the opinions from the u s department of labor and the national mediation board is not entitled to any deference frankly given the un and clarity of the court decisions i don't think regulatory is as important here as it might otherwise be but your searching is simply wrong as a matter of law this court has been clear including in the only house case cited by plaintiff that the agency opinion writers are indeed entitle to skidmore deference because of course they cross through the body of experience and informed judgment moreover the wait to be given such opinions depends among other things on their consistency with earlier and later pronouncements and their reasoning and here the opinion letters are consistent with each other and with the courts both before and after they were issued there consists in not only an overall conclusion but also with regard to analyzing the specific arguments including rejecting arguments raised by plaint here and the opinions and cases are all consistent because they are all doing the same thing simply applying black letter law of common carriers to find the air ambulance companies like air in fact common carriers reverse is rationales for reversal if adopted would undo decades of uniform law about air ambulance facts show here that under the common law area evacuees in fact the common carrier that means it's a common carrier of for air cargo two thousand and fourteen tri state carefully hired out by individual members of the public this is why being an air ambulance does not per se make want to come in carrier it's why there's a dozen decisions because you have to look at the individual air ambulance company and evaluate what is all that it does is provides medical services because if so it's this case none of the prior authorities did that they all had