it please the court william weinstein for appellant michael katz the issue in this appeal is whether or not the constitution and specifically the due process clause of the fifth amendment applies to arbitration under the federal arbitration act the district court said no for two reasons first the district court rejected the applicability of the wellness standard of voluntary consent we were talking about an agreement to arbitrate between a private the question is whether or not a written agreement under federal laws and forcible that is the issue under off all written agreements and here wellness says that an agreement to  o talks about the fact that there are counterclaims under bankruptcy which seems to be very different from a voluntary decision to deal with arise and or not on its terms i mean  there you are dealing with bankruptcy counterclaims it's undisputed in this case your honor that it's also involuntary that is that you don't have the right to choose no that's that's not quite the case well if that is this standard that they're applying in wellness i think that wellness says that you have to have a choice and it has to be presented to you by the party who is on the opposite side of the bilateral contract there is no choice here obviously the cats has the option not to deal with rice and it all doesn't he if that if that is the stand well mr katz was yes mr katz was in the yes yes the answer is he could have withdrawn his contract he arbitration agreement itself because his choice is because the choice in a bilateral contract is whether or not he has the right to refuse with respect to  but rather by congress passing every arbitration agreement involves a waiver of the right to the article three power the right to a trial by jury and the right to due process under the fifth amendment there's no reason to distinguish between an arbitration agreement and any other agreement rice in a state actor verizon is not a state actor but the denial of due process here involves multiple actions by the government it involves the imposition by congress section ten a for the limited judicial review it involves the interpretation of ten a four by the courts it involves the district courts application process what we're talking about is well congress and the courts together in enforcing the judgment you're not making a challenge to actually what we're challenging is the involuntary application to the statutes that's correct we are not that private actor into a state actor now what it says what it says is that the involvement of the courts does constitute sufficient involvement to to be state action that i choice with a party that you enter into that is the standard that they say the right to refuse and yes i understand that everybody enters into all of these contracts every day and none of us have any choice with respect to entering  that that may be an undesirable scenario but it's not one that has no choice actually none of us have any choice anymore i believe the supreme court contracts that particular claim is is in connection with whether or not a party has voluntarily entered into a contract with respect to a cell phone and chief justice roberts said in reality a cell phone is like an appendage and confirm that his understanding of that decision in a subsequent decision we've slightly case it has a contract well but it has to do with voluntariness and entering into a contract to get a representing fries and i want to emphasize that the outs of the plaintiff is never disputed from the beginning of this case that he entered into and in forcible contract as a matter of new york law and that in addition that under the federal arbitra  act as interpreted by the supreme court that the that contract to an agreement to arbitrate must be enforced absent his constitutional argument so he's claiming that this was an involuntary contract it wasn't a voluntary agreement that's not entirely accurate because if it wasn't fact not a voluntary agreement he could have claimed that this was not of a valid contract under new york law he could have claimed that it was a contract an unconscionable contract he didn't argue and he has never put forward that argument is the only question here is whether it somehow violates the constitution to enforce a private agreement to arbitration and i would submit your honour's this court can decide this case on a relatively narrow and simple basis which as the district court held below that the argument presented here is barred by the law of the case doctrine at the outset of this case mr katz argued that enforcement of the arbitration clause would violate his rights under article three of the opinion cause because although he is making the argument under a different control under a different constitutional provision the process there article three the need for state action is common is this court in the supreme court of telling numerous occasions that the need for state action is clearly required under any circumstances to assert a claim under the constitution honors unless you have any any questions i would rest on our our papers thank you very much mr ranson you have one minute rebutt constitutional right can be waived with the right to refuse to waive that right that violates wellness any private agreement including the private agreement that was an issue in over my  frank involved a federal question whether or not that contract was in forcible regardless of whether it was adhesive or not they said is that knowing voluntary and knowing involuntary there's no reason that a contract for arbitration is supposed to be elevated over all of these other contracts if the federal law if the law is that a federal question governs the enforceability of a contract for the purposes of waiving a constitutional right then that should apply equally to an arbitration agreement the purpose of the federal arbitration act was not to elevate arbitration agreements above any other grievance it was to treat them equally and there are a number of contracts that have been held to not be enforceable because they are not knowing and voluntarily entered into wellness provides the context for terminating in the context of arbitration what that standard is thank you very much we'll take the matter under advisement that concludes our matter set for all argument today we have one more case rogers versus brick koski which is on submission