and they made the arguments and the court disagreed that there was state action here that's not the argument we're not saying that ration the f a a or the opposition clause in this case violates the first amendment we're not saying what we're saying is but in order to have the statute the constitutional standard of waiver you have to have something constitutional somewhere here going on right and so the constitutional here the right is to file a lawsuit and  case in federal court that's a constitutional right under the first amendment one circuit case law says the u s supreme court says now if you want me if you i have that right to be in court ok that's a constitutional right if you want me to be out of court you want to kick me just if it seems to me that if your argument works it's because the it's the petition clause that you're talking about and the petition clause runs really against the government after i e the judge so it isn't it's just hard to get the waiver context doesn't trump you out biggest problem is what is your first amendment right you have a first amendment right to come to court but you have a first amendment right not to have the court say and the rules of this court are i think you have to go over there well i fire lawsuit sure but my point is that the first amendment allows to be to be heard on the on the unrelieved to seek relief and where are you getting that from well i'm getting that from ninth circuit case law i'm i'm sorry mike what resolution of legal disputes right so so if you look at my reply on page thirteen the court's present confirms that the petition protects the right of individuals to appeal to courts and other forms to stablish by the government for resolution of legal dispute arbitration the legal dispute is whether the disappear has been violated or not the arbitration the the form is the court is the form to be heard so it's a procedural right it's not a substan be heard and the constitution says well you can you can apply to you can petition the government which is the court that's what we're doing so we're petition the government to be heard on the substantive issue which is  and the government says no i'm not going to hear that i'm sorry and then if that's the other problem with the petitioning claim instead and it isn't really a right to be heard it's a right to ask to pay her well in other words if if you file a petition in the right but the right one yes or no well well let me back up because applying a petition to the legislator an administrative body is completely different because if you look at the fundamental bottom three parts of the branch of the government the court is an ac here disputes that the supreme court ruled the way it will because they don't want to burden the administrator and the legislature with listening to a bunch of petitions and dealing with that they have other things to do they have other important things to do the court is an ac anything else submitted to the court anything that is allowed by the rules of the court but it doesn't change the rules of the court that's the problem rather than the right to petition right include the right to change the rules of the court well so that it's not it's not  that the rules of the court infringes about the petition it's that the rules of the court to it's very simple it says look you are in court you have a right to be a you have to right to litigate but you've got to follow our rules make sure you do comply with deadlines make sure you respond to documents but my point one question in here yes i would like to have you distinguish robbers i haven't yet seen from your brief or from your oral argument ok where i would feel comfortable writing the opinion you want us to write  line of roberts ok roberts yana was a constitutional violation it was an argument that the f a a violates arbitration in general that the f a a is unconstitutional the statute itself is unconstitutional that was the argument and roberts and the court stated before you bring a constitutional challenge before you you attack the constitution of the statute you have to have state action which make sense it's correct i understand that here ya know we're not saying that the  whether you limit yourself italy well specifically i have you said a lot of things ok you were if you were writing the opinion we distinguish roberts on the facial direct attack on the federal but the problem you have that's true but why does the difference in this in the nature of the claims change the state action analysis that's what constitutional right to do that you are not being allowed to do because of the assertion that you've waived it so you have to identify what this constitutional thing is that you were allowed to do when isn't it the same  have therefore you need to have a state actor somewhere whose rights you're here who's obligations you're waving and that has to differ from roberts and some tash ok so if if state act to apply the even that happens to seem accurate to me but why is roberts why should drop or tip said the same thing because roberts was a constitutional challenge on the statute self see the if if if your hon please the court of course plaintiff is asserting a constitutional right in this case it is no moment to say that there is no constitutional challenge plaintiff seeks to interpose the first amendment's petition clause as a bar to the enforcement of the arbitration agreement in this case and the specific argument the plaintiff makes based on the petition causes i didn't knowingly intelligently and voluntarily waive that first amendment right that has to be rejected on this court's precedent the constitutional waiver test is applied only if there is a constitutional right implicated well but isn't he right that the first amendment right is the right that runs against the court that he's  is the right that runs against the court to entry to court now i he may be way overstating what that right is but in terms of where the state action is why isn't there state action and when the court says i'm not going to hear you know i'm go over there action is a private arbitration agreement but that's really not what he's saying i am now and he said to me at the problem with this argument isn't the substance of the petition was argument we obviously agree with that but i do think that there was ground on the one that's dictated by roberts and duffield is that there is no state action the only two places you could find state action here would be either the courts and foresman of the agreement because there's nothing else that is forcing the plaintiffs to have to go to arbitration it's all it's the agreement itself it's either a private agreement in which there is nothing that the courts involved in or it's the courts and forced into that or it's the f a a itself and robertson duffield well  roberts did two things it tried to both challenge that have a direct challenge to the f a a and say we're directly challenging the f a a and also tried to bring in the person who's enforcing the agreement but duffield says that in force mint of the contract by a court can't be and that's that the plaintiff's argument was and i'm quoting here that the reason they're enforcing their arbitration agreement was barred because quote they did not knowingly and voluntarily give up their right to have a court adjudicate their claims this court rejected that argument that  would requiring state action now the reason why i say the state action has to be in the enforcement that's the principle that runs throughout this court's cases and frankly the supreme court and all the court of appeals cases when you're talking about contracts you can't just say that when court enforces a contract now the constitution is implicated this court's decision it oh no says says that contracts between private parties are not without more subject to the constraints of constitutional law so for example if i enter into a contract that says i'm going to part with some of my money and pay it to you just because a court and forces that doesn't suddenly make it a due process clause right that's implicated there is no first amendment right implicated here if the government is not the one that  if congress does not abridging one's right to petition the government for redress and that is not happening here under this court's cases what is happening is there is a private agreement the plaintiff has agreed with my client to use this right is a right that runs against specifically the court the one he's asserting now as i say i i don't think he's made out the claimed that it's been at th really a right to spend waived but suppose there were a petition right as broad as he's arguing for one that says not only do you have a right to ask me to lit the case but to have me litigate a case to court that is so i go to court and the court says sorry i'm not going to let you do that well that's it seems to me then that what's been waived wherever by whomever it's been waived is a first amendment right and so the fact that there's a private agreement mean for example there is a lot of case law that says that a private agreement to waive a jury trial much not in the operation context but once you're actually in court is subject to knowing and voluntary waiver stand right there are cases not on the ninth the ninth circuit when it's decided arbitration going to hear you this isn't a case where the court is just someone's coming in and saying i'm not going to hear you i don't want to hear it saying oh there was a private agreement to arbitrate the federal arbitration access under nine u s c section two that you know those are enforceable there some reason that there is a regular state law contract offenses for that contract not having been informed that is the reason why the court is saying i've heard your argument but i'm sending it over to private arbitration because you entered into a contract by which that would go to arbitration that is in force mint of arbitration that is what duffield says enforcement of arbitration is not state action and roberts reiterates that roberts cites that quote to reiterate it and says that's the reason why we don't think that the f a a or trying to pull the other the opposing party into this and saying they should be associated with the government constitutes state action because all that the f a a does is it says if you have a contract then we w enforce it that's what the judge is saying when the judge says i'm not going to hear your case and so that's why i think this court's precedents squarely supported you know i think that to say this collapse because the reason he single out of court is because of privately that's right i mean i think in so many parts of this case where plaintiff is trying to put some distance between two principles there are is no distance between those principles there is no distance between state action and waiver the only time waiver comes up is if there is a constitutional right implicated there is no distance between saying what if a court rejected it's not based on the f a it's not based on the agreement of course it's based on those we do agree as we put forward in our brief that under the petition clause that all you have is a right to go to court and be heard just like i think that the argument that anytime a core anytime someone surrenders what would otherwise be a constitutional right if the government were depriving them as opposed to a private contract doing it would be have severe ramifications for constitutional law it would be all sorts of contracts could be due process could implicate due process cause because you're straining property i also think that their petition clause argument for the reasons you articulated during my opponent's argument would have severe ramifications there is there are jurisdictional rules there are administrative exhaustion rules all of these things would have to be questioned under the petition clause and i think one of the clearest cases that i think explains this best was the d c circuits decision  american business association versus rudolph that we cite in our case that's an example where it's actually a great fact pattern it has to do with charter bus service to the mariners games in seattle and there's a natural rule under a federal statute that says you know you can't be supplying that charter service if you're getting federal funds well the people really loved it and senator murray said i really want to make sure these charter buses continue and they passed an appropriations bill that said the department transportation i may not expend any money enforcing this charter rule as to these charges to the mariners games only those nothing else and the petition cause argument was we get to go to the agency we get to argue that this is a violation of the rule we want the agency to enforce it and the agency says we can't do anything about it we literally get we're not allowed to spend a single cent doing this we'll listen to you we can even say we agree with you but we can't do anything to enforce it i haven't even listened to them i can't spend any money i don't pay the salaries of the people that i've that's what i thought you were going to say that would make it even more interesting yeah you know i mean they actually said we could listen to it i suppose maybe they're being paid to be there anyway but in any event they say no protection clause problem whatsoever because you have a right to be heard you don't have a right to have the kind of powers they said you can't even spend money to have somebody listen to the top of the mail that's the petition class problem that that would present a much more interesting question but that's not the question in this case so it's a way understand if there's any any limit to what you're arguing are you saying duffield and roberts leave no gap for any future argument that the court some foresman o i'm going to say maybe that's correct as i read the quote from you that this court articulated that the argument they made in roberts was that we didn't knowingly and voluntarily waive our rights the court rejected it articulating the no state action in the plaintiff actually did argue that they had not knowingly and voluntarily waived their rights now i can see that the decision by the court says that those there were two forms of the knowing involuntary argument there were only made as to the title seven claims but the whole issue as to all of the arguments that the plaintiff had in that case was that this was mandatory arbitration the same type of argument that the plaintiff wants to make in this case about why it's not a voluntary waiver because there was an equal bargaining power in that case what the court said was this was they were going to call it compulsory arbitration throughout because your choice was either to agree to arbitration or find a job in an entirely different industry because the entire industry required those rules there's no doubt that duffield was about compulsory arbitration whether or not they specifically said we reject the knowing and voluntary waiver standard really seems the sides of the case because there's no doubt what the case was actually about and kate in the court said no state action and you can't if you don't have state it what this court has said over and over again the george decision oh no decision and it's based on the text of the first amendment and it's based on supreme court decisions is that the first amendment is only a restriction against the government that is it and because it's only a restriction against the government the only time your first amendment right is implicated is if you have given up the right to allow the government to abridge your right to petition the government for redress there is no such state action here under duffield and under roberts and under well established state action precedent and for smith of a contract is not enough the f a a doesn't do anything other than enforce private agreements and this court's cases c miki is the counsel in roberts and that was the argument in roberts that was the specific argument that this court said this is not this fails the subtle encourage men test so no i don't believe so i also think that it doesn't matter in this case there's no argument in this case that there was some special presumption under the f a a that led this arbitration agreement to be read differently than normal contract law would the contract is entirely clear so i don't think that there was any for example there's no thumb on the scale in this case that the f a a gave that suddenly change this from normal contract law into something else it's to the language is clear and in the agreement that it is very clear that you are agreeing to give up your right to have a jury you're giving up your right to be in court so but i don't i don't think there's anything to that argument and again i think the ninth circuit precedent forecloses that argument ok thank you for that one thank you very  much two minutes in about honor first of all this is not me a contract law this is a contract that involves a constitutional right and the seventh and the sixth circuit stated that a contract that involves a wave of a constitutional right more than  contract laws involved to determine whether the wave is on adequate and that's the key in k and c case now i think everybody is forgetting one important thing first of all roberts nevis i gess the waiver argument duffield didn't address a wave argument and duffield that the plaintiff argued that the form you for violates the fifth the fifth i believe it was the fifth amendment and the article three that that case has nothing to do with  and if you want to limit the right to file a lawsuit then the judge at least has discretion to to to hear the case based on rules of the court now that's all we're asking for we were unheard of this on the merits of the dispute that the court kicked th we're asking is to apply the waiver the waiver all it does it puts a check and balance into this arbitration system i mean i mean look what's happening here honors you know we have someone who's  if we simply say look you agree to go to court that's different from here here the court is actually doing another analysis they're doing a constitutional way of analysis the district court said look this doesn't apply here so it's more than just simply enforcing a contract here you have a court