morning are honors him so telly on behalf of mr sallust the appellant you know as they reflect on this case i think it really boils down to the question of whether or not someone compelled into arbitration can which is opposed and which they resist can wait to the conclusion of that arbitration to appeal the what they believe to be the erroneous order compelling the arbitration here is one other issue if they wait to the end and they let then they court enter the arbitration ward without challenging  t i i believe so i have not seen authority that imposes that require haven't seen any authority that would suggest if you don't challenge the entry of the arbitration award then why is not your case smooch well your honor i believe that in order to perfect an appeal of this nature one has to wait for a judgment to be entered and then the  previous order compelling arbitration can be challenged on this direct appeal and so you're suggesting that in an arbitration where you don't have to where you don't like it going to arbitration you can let the arbitration along and do nothing let the award come down have a motion to then affirm the arbitration award in front of the court that it be something that the court wants to enter or doesn't or and you don't have to say anything there but all you got to do is appeal the judgment well here i think there is the factual distinction from the normal case if one w to take exception to the factual findings the decision of the arbitrator and want to challenge that there there may be a mechanism but to simply have to reach challenge the court's earlier order before the trial court i don't believe that i i worry about that again because when i make a motion in limine in a case i can't just let the evidence come to the court and not challenge that evidence again when it's supposed to be let in or it's  waived my challenge altogether when i have a case where i don't believe that somebody has done a good job the court in sending it to arbitration it seems a little uneasy that i can sit on my heels and do nothing when the order to put in the judgment of the arbitrator comes and nobody does anything and then you just want to do the  judgment i'm trying to figure out how i can get to that that seems to rely on the first issue is it moot because you don't challenge it well i think you're our position would be that it was an issue that it was alleged and that was  form you don't wish to you don't wish to litigate and you simply acquiesce to the let's say a default judgment as is entered against you and then brought to your home state to enforce against you and your only defense to that is that the is that the first court lacked personal jurisdiction over you which is you have a challenge that you have a chance to work on the merits because you it was a default judgment but you can challenge the jurisdiction of the court to issue it is not effectively what you're doing here yes i think we are i think you know the the challenge was in the initial opposition to the motion to compel arbitration before the district court in that challenge preserve the right to appeal at the conclusion of the case but what i don't i think what's troubling me is what was the thinking behind doing nothing to to contest the petition for confirmation at the district court it really is extraordinary it seems to me when the law firm did absolutely nothing for purposes of this discussion yes you had to wait for a judgment that a final judgment that could be appealed or you certainly could appeal for purposes of this discussion the final judgment but i fail to understand the thinking behind the law firm not contesting essentially anything else up to that point well your honor i believe the thinking was that you know had the arbitrator made findings that were later to be challenged on appeal then that type of challenge might have been made to the confirmation  but we saw the confirmation of the order simply missed essentially a ministerial act that was it was not appropriate to contest because our appeal was to be predicated on the erroneous order compelling into arbitration which had already been decided by this district court judge it really is a minister ariel there is no judgment there is nothing to confirm there is nothing in the judgment against you except when you go against the very enact what the arbitrator does that's the whole of it that's why i wanted you to think about that that's the worry i have on move well there is another reason your honor it comes to mind is that the arbitrator didn't make findings or make any decisions relating to the order compelling arbitration whether it was properly in arbitration that was really the province of the and falls on whether the district court properly referred this to the arbitration yes and if we decide that we decide to refer was was appropriate then you lose the case i think that's true now the original intent was obviously arbitration and that's the reason for the delay without you know getting into the the factual weeds here because i don't think it's directly relevant to the decision of this court in the standard is different but the reason for the long delay was the back and forth with opposing counsel to try to craft some kind of procedural mechanisms so the arbitration could even be conducted because the the c b a that was being enforced and directed into arbitration was so bereft of any procedural mechanism it did it did not even allow for the awarding of damages in that discussion that discussion took more than one year is that what you're saying it was a very long tortured back and forth which i think is reflected in the the record and that is what engendered these these delays it was and it was never the intention of the plaintiffs council to abandon the prosecution of the arbitration but they were forced to take a lot more time than would ordinarily be the case because earlier point dippold record reflects a troubling lassitude on behalf of the firm or on behalf of salads there there were efforts and one of the difficulties was the contention between counsel over issues such as how would the arbitration be paid for you know under the controlling long california arm and there as the employer must pay for such an arbitration a binding arbitration here the employer was resisting that it ultimately was decided that they would split the cost of the arbitration which is incredibly burdensome on a plaintiff in a civil rights case of this nature that's just one of the many fights that occurred but that's what underlie the delay  we're here really to contest the order compelling arbitration we think it was erroneous we think it was in violation of controlling law under the as an unseeded by the supreme court in the piat case if i if i were to disagree with you as to that is can i really say that the arbitration provision unconscionable under armond errors yes how can i do that doesn't seem to me that california law is very clear on whether the requirements set forth  some minimal discovery allowed the requirement that the statue limitation track of that which would be allowed under the normative statutes here there's an abbreviated one week statue limitation all these things make it unconscionable are our view those are the major provisions you would suggest those are yeah those that come to mind the rest are dealing needed in our sell us didn't get to sell it wasn't and was an actual party to the arbitration or us dollars as represented by the union now it was solace and the union wouldn't participate refused to participate the unit for refused to participate provide didn't allow for them to do so i mean it's just it was there's a declaration they didn't they didn't believe in solaces claim no i don't believe that's the case i think they just felt that they didn't have the contractual right to to to bring an individual claim of this nature that the c v a allows the union to grieve a situation where the company attempts to accommodate a disability and if it were to in so crafting that accommodation violate seniority rights or bumping right something that nature in the c b a then and only then did the union have the ability to grieve that the union is looking for maybe maybe broader interests that  kaplan indicates that that there were no proposals during the negotiation for either the c b a to include statutory employment discrimination and other related employment claims in the grievance and arbitration procedure a that would be that would belong to individuals so but i thought here sallis did not file a grievance and if he didn't file a grievance then there's no role for the union isn't that what wrong about that all right i think you're right that that would be one layer of the analysis but also they didn't feel they could involve themselves in this individual statutory click the paragraph here in this how do you know then how do we know that we talked about thirty eight point one just simply doesn't address what happens if the if the union doesn't doesn't doesn't want to let it get this doesn't want to arbitrat and if your client doesn't file a grievance with the union the union doesn't have doesn't really have much of an interest  well i don't believe the union ever even contemplated that they would be put in the position of representing i mean my point is i'm certainly going to ask counsel for and house or bush is you know why does this why do we think this paragraph is even applicable at all it doesn't mention employees any place right is purely between the union and the and the company it doesn't and i would suggest that unless the union decided to arbitrate this on behalf of a of an individual employee in which it appears that perhaps only the employee had an addon interest there was anything there weren't there were no other consequences to other employees of the union so there's no there's no it does have an impact on let's say seniority rights that you mentioned the letter if the union in doesn't doesn't have a particular said gee i want to invoke my arbitration rights that and house or bush wouldn't be able to come forward and say thirty eight point one says nothing about you being able to compel us to arbitration yes and in fact  as the ninth circuit pointed out in the powell case section forty one of the the same c v a provision speaks not at all to the right of the individual employee to litigate a fee her claim against the employer  h unless there are other questions from the panel i would like to reserve a minute or two i'll give you a minute here over your time but i will allow you a minute thank you o good morning your honour's my name is sherry sweet i'm here on behalf of and heizer bush frees the courts i want to address mr so point that he claims or he contend post dispute agreements that the parties and turned into eliminating whatever procedural issues are deficiencies supposedly the c b a had there is a public policy under the arbitration i don't have the time i don't have the money i don't have the wherewithal for whatever reasons so i just think that i think the district court was wrong on that point and i'm willing to take my risks on that and if i'm if i'm wrong i'm done but i don't i don't wish to i don't wish to litigate this in front of the arbitrator very tender says fine he issues the equivalent of a default judgment and why isn't this now properly before the court on the question as to whether the initial referral to the arbitration by the district court was a valid order well two points because first there's a public policy reason behind why an order compelling arbitration isn't immediately appealable and why one denying arbitration is and that there's a process that the part so right so he did not have the right to challenge to to bring in bring the interlocutory appeal here to seek review of the district court's order to arbitration does that mean that it's unreviewable or is it mean that it's regrettable now it under other circumstances i would say it would be reviewable now but here he entered into post dispute agreements which eliminated all of the reasons that he claims the order was erroneous in the first place oh he didn't want to be an arbitration and then he that could have been raised with the district court or the arbitrator neither was done here and instead what mr sallust did was just sit around and wait he didn't move to he didn't move to what he didn't move to have the order reconsidered he didn't raise that before the arbitrator he did any of the arbitrator have any jurisdiction i mean the district court is the one who determine whether he went over there not the arbitrator had no jurisdiction to determine that a line is it seems to me that your arguments about what he did or didn't do and from the arbitrator are little bit uneasy i'm wondering why you just didn't say anything about he never challenge having the arbitration award entered you didn't even say that i read all three your briefs it's not there oh yes sure there's where well you can look at it later it's not there i look for it i think it's waived if you don't say it so i was that that point well i mean the bottom line is if there is a time when he asked a challenge he did make the right challenge when he was going over there the question is does he need to challenge it again when somebody moves to confirm the award nobody challenge that in your brief but if that is that might be a moot issue i've swire asking the question but he is challenging the judgment right he is yes and therefore if he can make the challenge saying i don't want to go to arbitration get whatever ward you want over there and i'm challenging the judgment you get from that i'm having trouble why that's moot unless he's got to challenge the confirmation of the war he does i do believe it is in our brief that he didn't raise any challenge he did move to vacate the dismissal we raised that number and he didn't oppose our motion to confirm it and i believe the way that we phrased it in the brief is that he waived the issue bringing it to this court because he didn't challenge it and so so what are you going to do with the california cases that i had to research because they weren't any place to say it doesn't matter whether he challenges are not the california cases were under the f a a i understand but we're also doing  california case well with respect to with respect to that my answer is that we have to look at the overall policy under the f a a because what i think it would be a different situation if if he did just go to the arbitrator and say look i don't i don't want to participate in the process and and dismissed my case so i could move on to appeal the initial order what happened was he strong along with three heirs and participate in the process then didn't participate in the process and then did and and dragged it out three years and that delay he attributes to the deficiencies in the c v a but that's not entirely correct even once the parties reach a stipulation to agree on those procedures he waited a year and three months even contact the arbitrator to to start the proceedings and considering that there was a court order here to participate in arbitration of the f a is that the public policy to let a party basically blow off the proceedings ignore them let the fan and not participate in good play he hadn't blown off the proceedings let's suppose that he fucked with you sort of fair and square all along the way trying to get procedures that would benefit him in the way that an arbitrator was selected in the procedures of be used to mother discovery was available and so forth you have a full blown arbitration lasting days or weeks let's suppose that imposes an enormous cost on both sides the arbitrator comes out with a decision against him and hauser bushman takes to the just a court ask for confirmation he fights it there on the ways in which the f a allows you to challenge an arbitrator's decision on the merits at what point can he challenge you never should have sent me to arbitration the first place i i i protested that when i had the opportunity i phrased it i didn't wave it now now can he still way raise the the you never should've sent me to arbitration argument now yes understand what you're saying on that on that end of the public policy but there's one thing about the cause but there's also the case it's going to play out the same in court i want to have a different decision maker but the facts are the facts are the law is violated or it wasn't and not public policy to make the person participate in good faith at least the parties could see how that case is going to play out what wh participated in good faith when you want i mean do you feel do you feel better i do you have to go back to clients i've got i've got i've got good news and bad news we won but we didn't win on the we didn't win because he he fought us he just rolled over and died got house or bush is really going to care very much as to whether he as to whether he he fucked you on the merits or didn't in an arbitration right as long as they will all right and then the point is to keep winning and for now he or we're here in court and all the only wants to make he doesn't want to he doesn't want to spend your time and your precious money on anything and your client's money on anything else except for one point that he shouldn't have been referred to arbitration in the first place the district judge re as if i'm looking at the correct powell power versus an house or bush was in it's violence on november third two thousand and eleven yes that's after the district courts referral to arbitration yes and i think that would have been a valid motion for reconsideration that so the time ok and  over and anything to make the arbitration go forward that he's in fact moving his argument that's what you're arguing which it seems to me then everybody's going to be like him they're to say i'm not going over there because off i go over there at that point i moved and i want not to go that seems to me there has to be a time when he can say and the problem is he can't raise it to me and so that i think is judged by b s questioning where do you do it my only idea was maybe when they confirm the a warm but california is not going to allow that and i'm trying to figure out if that's what i apply so there we are i would like you if you tell me why the district court was and erred in there in compelling the arbitration because the case law says that if the statute is specifically mentioned in that c b s and that the causes of action are specifically mentioned that's a clear and i mistake of all we have i did you hear judge by beast questions to counsel about the provisions of don't even talk about the employee at all there's nothing suggesting the employees got to arbitrate at all the union may well how do i interpret that to say clearly mentioned in the c b i and that this any violation of the c v a is a cause for a grievance who is obligated to submit one now and under these circumstances what we did was we said look you didn't you didn't submit your grievance to the union but there was an individual arbitration well we tried to have one and he didn't participate in that process it wasn't the mechanisms that prevented never have been in or betray sheehan and waited until a final judgment was entered isn't in some way that the cleanest most pristine solace to have taken now because if he had done that we would have this this whole process would have been years ago now or seven yeah this is in two thousand and nine he raised his claim arbitration i take it it's not it's nothing on his shoulders the period of time the arbitration took he didn't want to be in arbitration he had nothing to do with it and he's been consistent but for the procedural wrangling that we've been talking about and i'm on it unaware of any line of cases in california as there is in fact a new york state law that you waive certain rights if you participate in the arbitration i don't see that but he wasn't participating in it in any way but for the procedural stipulations you were talking about so why shouldn't as it where you get a medal for having a consistent position of i shouldn't be in arbitration soon as i get a final judgment i'm going to raise that well i think there has to be some public policy here in the way that the statute  threatened because what if the judgment was entered five years from now ten years from now procedurally technically he waits till after the judgment yes i agree that would be the time to raise that but there has to be some consideration for him sitting on his rights and not being interested in pursuing the actual claims themselves in any form and i go back you have the step you're sure the f a a is applicable here i take it yes i mean that the arbitration was again and that reminds me of another point that i wanted to go back to with judge smith referencing california law versus federal law and that this were these were california claims and i substances to when he had to challenge this i could find nothing about he had to challenge at the time the confirmation of the and i can find nothing in any place so that says he doesn't have to so again then i'm here on judgment that's why i well i simply would point out that you know there's no authority that requires a litigant to keep pestering the district court with motions for reconsideration and so forth in a manner of the state and