decided of course hill was correctly decided as binding precedent requiring reversal concluding the plaintiffs are transportation workers also inconsistent with the limiting language in the statute restricting transportation workers to those similar to railroad workers or seamen and  congress is intent and purpose in adopting the limited exception of the f a a finally even if the transportation worker exception applies to district court erred by not deciding whether arbitration should be compelled pursuant to state law because the affable state arbitration  apply to the parties arbitration agreements st comparing this fact the facts of this case to hill is telling here was a unanimous decision which your honor judge carnes was on the panel which held that hill was not a transportation worker plaintiffs in this case were less of transportation workers than hill was purpose st to critical facts of the same some of the products both delivered have come from out of state on transformed the lower court consider this to be a difference of fact dispositive difference but it's not if the issue of whether the alabama or even in the united states this is robert is the test in il that was adopted from power and you know that the goods themselves that are being transported must have been interstate commerce and not you know not have been why is that not the beginning and the end if that is the test why is that not the beginning of the end of why this is wrong at least as the vast majority of the place this collective action where where they did not travel in other words th the ninety nine percent that didn't travel interstate well because you're on or interstate traveling interstate commerce is not the only it cannot merely be the traveling interstate commerce makes someone a transportation worker or both agree they have to be transportation can't be incidental i have to say just reading the record you're going have a tougher time convincing me and i'm only speaking for myself that these folks who are in the delivery business and your client is in the delivery business we're not transportation pal and you know well that's certainly true your honor that hammer himself did not travel interstate in the in the point of group as a whole including the oftens already in the case fairly traveled interstate but the pill certainly fairly let me ask you this is a fairly a problem for you and the th circuit seems to suggest that even if it's only rare if there's some transportation or state commerce that needs that element how many of the opt in plaintive did at least in some part of their job with your clients travel interstate some of the often did some didn't but i don't believe that fact is dispositive because it cannot possibly matter whether someone that's doing the same job happens to live and what's safe as a maryland when they're crossing into another state and another person lives in macon georgia where they're not where they're doing the exact same job and not delivering out of state that that's a listen that doesn't magically lines are significant  the fact that someone happens to live in a border town that crosses over doesn't matter because those state lines do matter and i don't see how you can read our case lovelies that requirement of actually engaging the workers actually worker seaman which we all know what that means that means that the council as i read your independent contractor agreement and as i read the evidence of your website and as i read the affidavit for the plaintiffs and your own corporate  resented if you're in the delivery business these people delivered their job wasn't incidental and that's what distinguished phil from from what i want to claim was ultimately unsuccessful that the effort that the exception applied was because his transportation with they compared what what the what the incidental part to two there were they compared the incidental part to the power and you know where it was just part of the job his job included sales included customer service and also included city where justice kennedy made clear that the engaged in commerce language is narrower than the than the interstate commerce power of congress and engaged in commerce has to be in the f a a exception has to mean something and that means that someone has to be similar in nature to a railroad worker or a transfer railroad worker seaman which means somebody whose job it is to be engaged in interstate commerce that would have affect the free flow of goods palatino was prior to the supreme court's decision but that the this court's decision until clearly adopts justice kennedy's justice kennedy instructions and circuit city that that that the emphasis is on a class of workers in the transportation industry rather than on workers who incidentally transport goods interstate as part of their job in an industry that would otherwise be unregulated this court flat out said than merely transporting goods interstate is part of the job is not enough right  f in other words if part of your job is to at one time or another get on a truck across state lines that's not enough absolutely but but what is enough is if that's all that you do is transport good then you are a transfer a class of worker and transportation industry right no because if that were true your honor then congress then that is there is no meaning to the women in language of rela workers seamen congress could have just said and then when the transports good is there is a is within the scope of the transportation work that would let me ask you in the early days of the railroads there was a railroad line between jacksonville and the coal and didn't go any other particular place where those workers not in the railroad business clearly  were clearly they were your own they were regular the same thing in the old days the only way to get from jacksonville to pensacola was to take a boat around the straits of florida from one to the other state in the state of florida are you were you a seaman if you work on one of those boat that if you drive between even if it's interesting you're in the transportation industry like a rail or seaman the nd part of that test is are you crossing state are you actually engaged in interstate commerce mean are you actually crossing state lines in doing that and that is none of the people in this class is job is to reg to drive interstate commerce interstate routes like that these people's jobs are doing local delivery whose when when they have to cross a line that is exact word use is correct is incidental correct but those aren't the facts these are slowly final mile local delivery drivers some of whom are identical to the ones that judge berger the lower court found were not transportation workers in the subsequent kansas case that working for medical  that are contracted with met a flea doing deliveries of medical supplies locally in those those people are included in this class as well so if if if the facts were what your honor just said you'd be that would be correct but they're not that's not what any of these drivers do about the nd prong of the hill standard about whether these workers were engaged in the flow of interstate commerce and as the district court found they decidedly were the district court made very specific factual finding state lines as engaging in that business not just the flow of the goods but that the workers themselves flow across state lines both binding certain supreme court precedent as well as previous decisions from this court to see it i different way that it's not a test and tell me what binding case law from the supreme court says that it is the goods themselves that much flow and not and not the workers now it may be an open question  term engaged in commerce engaging the council this is a different statute so it's a completely different statute fifty years later and more importantly the term is not engage in comm the term is workers engaged in commerce right it is just the way the supreme court has defined it in circuit city stores is we held to the phrase engaged in commerce engaged in the flow  city so at least as far as this circuit is concerned we were at circuit city to readopt the palace you know that would seem to require that the transportation worker themselves must move in interstate commerce i was and what i just said company walters is a i don't even know the name of the statute i never heard of it before and i'm looking it up it's about a medical it's about medical equipment or medical device it has nothing to do with the f a a and the right we because you have to be in the class of transportation workers so what the court said is that doesn't meet one of the elements crossing state lines but the other element is you must be in the class of transportation industry workers now i happen to think that you met that bur obviously used in several different respects throughout the law in different statutes different areas and it has been continuously described and held to be from the beginning of the trip to the end of the trip without question the plaintiffs here are finishing that trip they are the final mile and in your honor you indicated you read the declarations from class members here in this case we also have numerous class members from north carolina who physically did go into south carolina every sing counsel i think that for those you probably are right but i i think my concern and this is again i'm only speaking for myself i think my concern is those the vast majority of workers of the company who did not do that who are final miles but no where near a border and there are i don't want to read anything we say in our previous journal but there are of course numerous district court level cases that have held similar groups of employees here who are traveling entire entirely in trust state back and forth but we're bound by phil and i'm just trying to view hill and the way that that supports your reading i'm looking at how do you know for example where specifically describes the exception and says it includes  that she that her was required to move goods in interstate commerce in other words that she wasn't required to move and that was the failure and how do you know and then bill we reject the argument but not because he didn't move from alabama to georgia which he did but because were doing performing that final mile last leg of an interstate trip from manufacturers all over the country and world delivering delivering these goods sounds like a good on council but you know you're understanding that is a better the using the term engage in commerce in a different set sheet but again the terminology we believe still is important in that case the court the th circuit there found the group of plaintiffs there were engaged in commerce for only one percent of their trips actually left the state and here us pack does admit people did travel in her state they try to minimize it of course but it did happen and our plaintiffs did say it happened in their declaration using alters one percent is enough according to this court i mean it's a very low standard of what is enough because the way walters was looking at it and these other courts was that even the skin trust a trip still counts overall as interstate commerce because it is one thing to new it's flow and that's why all these other cases that are distinguishable the need to grow up in the door dash cases you have with the local delivery drivers who are only taking a new transformed new product from mom and pop pizzeria to a house you know a block down the street are different here this is part of how transportation works today is you have big rigs bringing it into the warehouse you have the wheel and spoke  can also lose its valentine's of argument but it can also lose its effect time i think we get your point about back good this is the modern way everything moves in interstate commerce understand or anything else to mortgage on that issue the only thing i would i would add is you do have to look at the facts of the case and you do have to look at what what is the industry in question here versus ill which was then run a center facility i mean  whole purpose for existing is to help customers in business transport their items from all over to their local customer that they are selling these items to and so it is one that the district court correctly ruled that this arbitration agreement cannot be arbitration cannot be compelled under any sort of state arbitration code based on the expressed written terms of the contract the district court analyze the terms of the gates versus final mild case which is a supplemental authority that we filed with the court last month from judge story in the northern district of georgia and a very almost identical situation a here will the same way both that the transportation workers exemption applied as well as the language of that arbitration agreement which was virtually identical to the agreement here only allowed arbitration to be pursued under the case didn't have nothing to do with what happened with the goods prior to the time either the worker or us pact if the defendants got ahold of any of these goods pointis are their interpretation as articulated by mr morgan clearly says that effectively goods can never if you're transporting goods you cannot be within the scope of the transportation work session he's effectively arguing unless you're transporting food or people that that's transform locally you cannot you're not within the arbitration must rise or fall on the application of the f a a because the f a a effectively preempt state arbitration acts this is wrong for a couple of reasons st if the transportation worker exception applies which is the only circumstance in which the state law argument matters whole that that is not that should not be stricken from the that the general overall intent to arbitrate should not be stricken from the record and severed because there remains the governing offer vision and the clear mutual intent to arbitrate should be enforced through state law and the facts state law can do that is readily obvious and i perhaps the best example in the briefing is pennsylvania where some of the drivers came from pennsylvania stat pennsylvania's arbitration act expressly applies to agreements in which the pennsylvania uniform arbitration act is not invoked and that language is utterly meaningless if if if the if a court does not have the authority to apply the pennsylvania arbitration x amount of the expire thank you commerce viewed that way i believe you're correct your honor but i would view with the way of if if this if ultimately state laws going to apply to these agree to apply these agreements to arbitrate then allowing allowing this with a geisha to continue effectively means that you're rendering inextricably intertwined to be so narrow as to be meaningless because you if you're ultimately going to have to decide the issue anyway it's a incredible waste of resources you don't have division of responsibilities between district courts and courts of appeal and here's the test we laid down  the only the only point i would say there is we aren't asking the court to rule state law applied we asked the court to rule that the state that the lower court heard and not to say and not deciding the issuance of reman we did not ask the court to act to actually rule on whe certainly argue that but the last line of our regular brew of our prime a principle brief says if the transportation worker stepha does not apply remanded to just record to apply the applicable state arbitration asked the to determine whether each plaintiff in often should be compelled