foundational proposition i think it's an obvious one but nonetheless one that helps guide our analysis in this matter arbitration is not the problem and the legal system is part of the solution there's nothing inherently wrong with arbitration and i think we have to dispel the notion that by arbitrating disputes we're somehow stripping away or limiting remedies that's not the case and we live in a society in a legal culture where the members are very litigious somewhere between two hundred and fifty billion two million three hundred thousand civil cases are filed in the federal court every year there are literally tens of millions of cases filed in the state courts  litigation is expensive it's time consuming and doesn't always get to the remedies that individuals are seeking because it is so expensive and because it is so time consuming this is actually represents that principle very clearly this case was filed in two thousand and sixteen is now two thousand and twenty one it is particularly significant that we just went through a pandemic that shut our courts down limited to the number of trials in legal actions and now we've basically half full largest backlo of cases we've ever faced as a country arbitration helps solve the problem there's nothing wrong with that this is indeed why the federal arbitration act exists and why the supreme court repeatedly reaffirms the province for arbitration waffle house as a matter of fact was one of the exceptions was x an exception driven by a narrow analysis focused on a specific government agency had the supreme court intended to adopt a blanket rule of political to every government agency to quit have done so it chose not to and then stay ed focused its analysis on the peculiar needs of the e e o c the particular agency that was involved in that particular situation exact point your honor and it's also the very reason why i think appellate courts routinely recognize prior process and then evaluate the case before them and determine under the specific facts of the subsequent case does the prior precedent apply and that's exactly what i  says we are addressing the question of whether or not the c e o see and that's how they specifically frame the question they specifically referenced the e e o c in that determination and said does the e e o c have to arbitrate where the underlying beneficial claimant signed an arbitration agreement that's that's the question that was presented out of the decision they issued and there are pages of analysis in the bottle house decision focused on the  i don't think we can necessarily extend that decision to other agencies without evaluating how those agencies operate in the peculiarities of those agencies but what about the basic principle that i mean arbitration is a product of signed the agreement so they're not there they don't need the workers consent to bring the claim you know they have their own claim and the o c hasn't agreed to arbitrate why isn't that equally true of the labor department here well that's a very good question roger and i think the supreme court was focused and on the fact that in that particular situation that was just one of many factors too about the supreme court didn't limit that issue could have been a very short opinion if that was the  central issue and had it shows then to ignore all the doctrines and the various federal courts recognizing privity and the relationship between an interested parties who may not have personally signed the agreement but may have rights that come out of that agreement or c lee may be pursuing right on behalf of somebody who did sign the agreement those dragoons are very widely recognized they have not been rejected they have not been a disadvantage and the federal restriction act does not in any way shape or form reject the concept  they're and i hear what you're saying your honor i do want to point out for purposes of this analysis that recovery of damages very clearly by statute go to the individual who treats workers  that's that's built right into the statutory scheme it's in the statutes need of the department of labor recognized in that statement of the issue and so brief that it's focused in on this and i'll say it directly to the language used by the secretary of labor recognize that there's a central issue the question is presented was whether the district court correctly concluded based on the supreme court precedents whether the secretary of labor may not be compelled to arbitra the remedy goes to the workers the none of the money that could be secured if the department of labor successful in this case would be tapped by the department of labor at all goes to the workers on behalf of the workers and i think for that reason this is a version of the question that i think judge miller was asking for a moment and the department of labor is trying to protect these workers whether they're whether they're properly characterized as employees if an individual worker had sold and assigned his right to a rd party rd party i don't think we'd have any question would be bound by that worker's arbitration agreement and i don't think at all that a worker can strip away from the department of labor a claim merely by assigning it i still think the department of labor can pursue it i just think at the end of the day the person who would receive the money is not the group worker but the assignee who received the promise or the agreement from the worker but none of that in my mind changes the analysis that we are pursuing recovery for workers who signed arbitration agreements and that's particularly acute in this case because the whole nature of the relationship from day one is dependent on an agreement that includes an arbitration clause whether or not these workers are independent contractors whether or not their employees all of that's going to be part of the fight and just frankly one of the threshold fights because the l s a does not concern itself in the morning damages simply because somebody is mis characterized as not only do they have to be mischaracterized they have to fail to receive minimum wage massive bail or receive overtime compensation if i simply mischaracterize the worker but neither of those two factors are present i haven't through litigation in the corps so i can see why congress would not be quite reluctant to allow these cases to be sent off to arbitration routinely whenever the employer can give the employees or the independent contractor get the workers designed an arbitration agreement and i appreciate that your honor if i can point out two issues with respect and response to that number one the supreme court decided in efik systems that workers can waive their right to collective actions and that was part of a statement by the supreme court that we recognized collective groups can pursue a claim and there's a lot of power in doing that including your exact point that it may make an important social statement of law and how it applies to those those particular workers rejected that argument and at the end of the day said not we're going with you going to arbitration so that's the history we're looking at with respect to the supreme court on the issue to i agree with you that this issue this issue of whether somebody is an independent contractor or an employee is a very important one i've dealt with in over twenty years of practice and all i have seen is oscillating back and forth on the standards i've seen in consistencies from one another on almost identical facts you're probably familiar with the dynamics decision in california on the california supreme court less than two years later the voters voted in an overwhelming the orders decided they wanted to change the law i don't i don't disagree but it goes back to my point when we're deciding this question of independent contractor status i hate to say it but over doing is adding to the cost in a voice isn't the issue over not assigning anything concrete lee we're going to make a decision that applies in the federal district court for the district of arizona maybe consider inconsistent with what the just report new york the size and the district of california the size and i say that because these cases are literally all over the map there is no consistency on this issue and the sefl point for the individual worker is am i going to get the money i think i'm entitled to will these workers and i'm not saying they're going to represent the secretary of labor a secretary is not bound by any arbitration agreement between delage and its delivery drivers yet unless they gave the secretary of labor independent authority to greying and a unilateral and finally the supreme court has held that the pro arbitration policy goals of the f a a do not require an agency to relinquish its statutory authority if it has not agreed to do so it is undisputed that the secretary has not agreed to relinquish his authority and therefore he should not be compelled to arbitrate his claims and for these reasons i respectfully request that the court affirm the because employees cannot even intervene and the secretary of labor action under the f o as they demonstrate ng the secretary has complete control over the action whereas in title seven actions employees actually intervene in the c to be able to even investigate potential violations of the statute secretary of labor can independently initiate investigations and can independently file claims and court without ever waiting for a complaint secretary can share privity with an employee and that the secretary cannot be the same claim that the employee had already fully litigated himself does not mean that the secretary is somehow  overturned lawful house or otherwise limited as holding those cases concepcion and epic systems both concerned employees challenging the validity of a class action waiver and they do not involve government agencies i think requiring the secretary to arbitrate particularly in this case would not only contravene the principle that arbitration agreements should be enforced according to their terms that would create an untenable situation that also contravene on one hand i would mean that private parties then have the ability to waive any agency to start a trace already but on the other hand it would mean that the secretary would perhaps be required to arbitrate on an individual basis since the arbitration agreements at issue do not permit collective actions so i can't imagine that congress does have this area in mind when it is an act of the f a and of course i would like to just mention that the secretary is not arguing that the that waffle house presented the blanket exemption to all government agencies that no government about all government agencies will never be  and so i will briefly conclude if there are dumb questions so far so good ok so just as i mentioned the reasoning and waffle house can and be applied here there's simply no material differences between the e e o c is authority under title seven and the secretary's authority under the f l s day that would warrant reaching a different conclusion the secretary should not be compelled to arbitrate and for these dictate that collective action waivers aren't forcible i also want to point out the court if i may there are really three fruitful distinctions and this is brief but i want to point out to them very quickly number one the e e o c and the o l are very different because the c is inherently involved in every discrimination claim brought under federal statute no claim may proceed without the e e o c passing judgment st it has more authority in that situation and i'm not saying the e e o c has more power or less power than part of labor saying it has more involved input in those specific claims inherently than the partners labor has and f i f a claims which women can pursue on their own without ever alerting the department of labor to the power damages was an important aspect of the supreme court's assessment and waffle house so this very crucial recognize that public publication of punitive damages sends a message to other lawyers we don't have that in the case this case the department of labor reality that that our society is very concerned about and the public interest in publishing and making evident those cases to me are so surpasses the question of whether a driver is an independent contractor or not and those individual drivers who may claim that they were underpaid and three hundred dollars or four hundred dollars their interest is in getting the money quickly not going through five years of litigation i also want to point out the court if i may that the supreme court has analysis was on point and a blanket ruling that applies to any agency automatically assumes that every agency is going to be exempt from arbitration agreement i think that these require an individual as analysis thank you very much for your time i think both sides