this case has to do of course with the question of whether or not there are sufficient federal issues implicated by the state law claims that been asserted by my client for breach of contract under the apprenticeship agreement that he entered into under a registered program that is approved by the office of apprenticeship in the department of labor and a state agency that whose regulations were also approved by that federal agency to implement the objectives of expressed in congressional intent through the fitzgerald act it was passed many many years ago there is federal questions will involve two questions that need to be addressed by i believe the federal judicial officer one deals with process and the other one deals with remedy on the  my client says that he was not given an opportunity to contest the points assessed against him under the administration of the apprenticeship program by the way your honor i forgot to mention i'd like to reserve five minutes for  you don't dispute that the statue doesn't provide for an individual call for action i do not hear and fell the only way you could what was the basis then for implied contract implied duties of good faith and fair dealing etc but each one of them has a federal component to it in the sense that the contract expressly incorporates the federal regulatory scheme into the contract and provides for those safeguards to every in really in the program but to private parties can't enter into a contract to create of federal cause of action where they otherwise has no basis for that specifically said that the purpose of the statute is to extend the application of labor standards by encouraging the inclusion of such safeguards in the apprenticeship agreements themselves and the regulations that been adopted by the office or what is that you're that's from section fifty of title twenty nine of the united states code but what does that have to do with this case because that that is used as the statutory predicate for the regulatory scheme that was implicated by the union's failure in this case to afford my client the opportunity to contest twenty four of the twenty seven points the got him bob booted out of the program or now you really lose them because you can't create a federal profit action based upon could probably help understand the help hopefully i can make you understand this issue in this context the the the the the question that my client is asserting is both a question of process and one of remedy it's no question but that he did not get an opportunity to contest the grounds that were used they say that they have the right in their almost unfettered discretion to decide whether or not he remains in the program we say that the federal regulations require you by having implemented a program that's registered and approved by the federal government they require you to have a due process component and he was not given an opportunity contest twenty four of the twenty seven points against him a question and maybe i'm not understanding that to get to italy i was under the impression that both sides agree that there are due process rights and that the question here is whether your client receive due process but i don't believe that's the issue that they raised in their defense they're saying they have unfettered discretion to decide who stays in the program and who doesn't and that the only requirement they have under the regulations how can they say that if the contract itself has a just cause provision right contract itself incorporates a regulatory scheme that has a good cause  are you claiming a specific violation of the federal regulations yes and what is that is a regulation that requires that there be good cause for any decision to expel or suspend individual's participation in the program that's i think twenty nine point seven h two double liability and with that is a lab in your complaint that the complaint riffraff and says title twenty nine of the code federal regulations that were in fact being violated and we also allege what constituted violation that is to say we did not receive the due process that was entitle to us and that my client was not you say that th that there was a federal regulation that provided for certain type of process and they're put there procedure violates that i mean you did get an appeal right to a state agency  the state agency appeal does not address this particular issue on this there's no exhaustion remedy or anything exhaustion requirement anything in fact the state agency found on the second issue the remedy issue in our favor but essentially their contention is the only thing could happen it's possible decertification the program that there's no remedy to my client for there having violated the adequate records provision but back to the other issue i would urge for before you go back there of the the to to have a cause of action here and it seems as though the responsibility here is vested in the farm the secretary of labor is very clear that the federal regulatory scheme also provides that nothing in the regulations deprives my client from asserting the law a claim under state law in this case that's what he's done but you should go to state court you just don't have federal jurisdiction that's the issue and we believe that the federal judicial officer is best suited to decide the federal questions that are holding us apart initiated in federal court for this particular process of action it's sensually this court's own decision in mccoskey we've got three piles to you have to satisfy and i think each one of them are satisfied this is satisfied  must necessarily involve a substantial federal question other words it's important to the outcome of the case secondly that the federal interest in the issue must be substantial in other words the resolution of that issue resolved the case the third one is kosky as i remember it anyway there was a dispute as to the interpretation of a federal taxpayer and that it's kind of clear cut you don't have any analogous interpretive question here what we do here on the what is it the reason is that what the just record has done is focusing only on whether or not the state of the federal agency or some officer of the federal government has made an interpretation or the regulation itself can be interpreted two different ways what we're saying here is that the way it was applied in this case by the sponsor themselves they effectively have rewritten along the way what was  regulations were applied in this and which regulation that my clients entitle to due process rights regulation under section twenty nine point seven h two double liable  not give good cause they did not give due notice and they did not give a reason walkthrough for corrective action what they did is they adopted a policy that since once you get thirty strikes you're out meaning three thirty point ok are you being you challenging bat or are you challenging the assessment of each of the points we're challenging actually both but the second the second part hinges upon who where does he make that challenge we believe he should have had the right to do it to the committee they denied him that opportunity so he has no choice but to come to federal court or state court if the court decides there's no federal jurisdiction to challenge that the second issue has to do with whether or not by assessing the thirty points with out of opportunity for review they violated the provision that says that he has to have a reasonable opportunity for corrective action he did not have that opportunity because they just simply said what you get on the way so i meant a certain warnings along the way that he was approaching the critical mass certainly but at no time until the very last one that they say you have a right to appeal to the committee at that point they hear your size is right to appeal and they would not let him contest any of the previous twenty four points against him they only wanted him to focus on the last three well that's the straw that breaks the camel's back but if any one of those twenty four other points would be invalidated he'd be still in the program regulation provide for review by a state agency the regulation allows for the state agency to get  agency here is not compelled nor is my client required to exhaust that remedy at all but he when he did it he did because i don't want anybody claiming that we went to federal court before we exhausted every effort in the state level that's what we did but  ultimate lay the state agency found that they violated the adequate documents provision but they also found against your client on the rest of it but that is there's no remedy in court for that provided for their determination it's an oh my client didn't get its due process rights it's something else to say under regulation this business and this these are the procedures they have to follow and they didn't and they been comply with federal regulations but it seems to me that you made very general claims below what i'm arguing and asking the court to assert jurisdiction over is that when they contracted with my client they agreed to follow the federal guidelines they failed to follow the federal guidelines and they say the excuse is we have unfettered discretion in the administration our program and we're saying you don't you have an obligation to give my client due process rights and the ability to challenge twenty four  twenty seven points against him and secondly you didn't confirm you did not meet the adequate documentation requirement so you can't even prove that my client violated or did not i don't think they said that and therefore you can prove that he violated can they didn't say that i said yeah well that is our contention is that the question on that one is do you have process in the numbers of consequence that a federal issue a federal issue there's a regulation specifically on point with respect to the adequate documentation they're required to have if they're going to suspend or to cancel a program accounts or participants so you're saying in effect that there's an appeal to the federal district court from these state administrative decisions regarding these apprenticeship there is no appeal from the state administrative decisions my client has a contract claim against the union for having failed to administer its program consistent with federal regulations the question before this court is whether that contract claim implicates in the federal questions really get into the specifics in the background here a little bit more but the claim that the the the basis for the lack of subject matter jurisdiction really is tied to the fact that in this case the as the as judge bolster the lower court held that this case is a state clear breach of contract action the claim that my opposing counsel was making satisfied the first main part is that there is a dispute a federal issue in this particular case there are some vague statements made in the in the pleading and in the briefing well as i understand his argument it's that this is a federal program yes it's administered through state procedures but there are certain requirements one of them is that the apprentice receives certain due process and that that's in the regulations and your program does not accord that so why is that not a federal issue the the  way the law of the case i recall ski grable and the other supreme court cases it's not enough that the breach of contract action may raise a federal statute or more regulations that may need to be reviewed in this particular case i think his argument is that under the regulations that the apprenticeship agreement needs to contain certain provisions such as what you just referred to are our approach agreement does contain all those provisions in this case  what was provided with due process he was provided with with everything that the regulations are you saying when i asked that question two opposing counsel be answered they came back is that no they don't agree that there's due process they say that it's entirely up to their discretion i don't agree with that it's not that there is do there is the law and the law's the law we don't dispute the law and that's that's the key here we don't dispute the federal regulations we don't dispute the national apprenticeship act at all we the cases where the courts have found that there is an embedded or federal question really it seems that the main issue would be where one of the parties challenge the constitutionality of the statute or there was and there was a federal agent such as the i rest making it making a decision that impacted one of the parties we don't have any of that here there is no dispute important because not only in this case is there not a private cause of action under the apprenticeship back but then also as you have pointed out the the department of labor the u s department of labor they will he filed a complaint i mean he may not specifically say that he filed a complaint with those acts against my client they did a thorough investigation that went on for i think months they reviewed our program from a to z they looked at his discipline but they didn't just look at mr funder way they looked at our program in total they looked at the apprenticeship agreement they looked at our standard they looked at everything and they came back and as he points out in his complaint they found one thing they found that the records concerning the on the job training for all apprentices not just mr found a way that we could be doing a better job with that ok but the key here is the discipline that he was imposed that was issued to h your procedures are adequate or is the question whether you had legitimate cause it appears it appears to be that the question is whether we breached either the procedures in the u k remained or inadequate to satisfy federal law or that you have to read that agreement with the overlay of the requirements of federal  law would that be adequate i mean if you have a situation where look we just follow the remit and they say well the agreement doesn't pass muster under federal law isn't that is that enough i'm not saying that no it's not that's not enough absolutely no that's not enough and all you have to do is look at look at mccall's look at some of the other cases grable the supreme court and what was decided there was it's not enough that there is a federal statute or in this case  regulation that they say you don't need all the different problems of it that's not enough what the what the courts say of the supreme court and the six circuit there has to be more that there has to be disputed you have to actually challenge that law one of the parties and say it doesn't apply here in the cat in the context of it's ok and then what would happen let's say hypothetically you have an apprentice approach apprenticeship program that's not meeting the regulations and someone who's in it wants to challenge it and wants to challenge it on the face that this contract is doesn't meet federal standards  in what happens is they would go like what happened here they file a complaint with the state agency that has been given that authority under the federal law they file a complaint and there's a complete investigation don to see if there's any merit to that to those allegations and and then the individual would either be be vindicated or there would be some other room at the end of it and that's the end of it and you find ok so it's a total delegation with no no joint responsibility or authority and where do you find that the only well as far as that there would be no further appeal right now that there's no further appeal right but there is no  there is no federal question lurking there that there is no federal jurisdiction to determine in any forum whether an apprenticeship contract complies with the federal statute the or read my my response would be there would be no avenue in the federal court if if if you want to bring a state breach of contract action he can attempt to do that i'm sorry what i said if he if he attempted to bring a state breach of contract may ask him a question whether there's any federal form whatsoever to challenge whether an apprenticeship contract meets the federal requirements there may be there you may he may be able to go to the department of labor file a complaint i don't know specifically he might be able to do that i know there are i don't know if it applies in this particular case but i think there are some procedures for complaint or some you know call to the department of labor and they can look into it maybe they consult with an agency i mean all right do you understand him to be challenging the contract or the facts i understand him to be to be challenging the assessment of the points so i appeared to be the facts that's that's what i understand it to be i think that's what judge poster understood it to be i think we have  he he didn't get what he wanted through to the state agency and now he's looking for another appeal we don't have to go as far as you went in your last answer to i don't think so right correct  another way are you saying that there is a difference between deciding whether the regulation was violated and determining what the regulation in fact me the this issue of due process the way i see it your honor i i before judge polls before the lower court there were some cursory references to procedures but front and center now on this appeal he is arguing the due process and that quite honestly came surprised me let me ask you this and never got the complaint in the district court  use this as an issue as to whether we should be entertaining these eyeing them as at this juncture since they were in the complaint is that of fair statement your honor that that's that's our position as as we noted in the brief we what about this problem as to whether you are arguing for things now an appeal that are not set forth for the lower and not contained in your pool well first of all your honor if you look at pages nine and ten of the opposition brief to the a brief in opposition the reason i'm really really referring to these pages because that's where the summary is to all the references in the complaint the complaint has where you could almost tell us where it is in the complaint without referring  it's easier through the replied very frankly because that's where i actually i summarized it more s paragraphs thirteen to fourteen eighteen to nineteen twenty one to twenty two of the complaint as well as complain paragraph thirty six lets you make thirty six i think deals with the ok i'm a familiar with these paragraphs numbers what were the language sure you make a reference to this in the complaint my client went through a pressure program where he was drummed out of the corps for having accumulated thirty points without being able to contest twenty four of the twenty seven that got him booted out of the program he doesn't contest some of them but he does contest twenty four of the twenty seven got him booted out of allison more interested in whether you would specifically raised the federal due process issue that you claimed there was a jurisdictional basis for in federal court that that's really what i was i mean obviously you say that you're glad i was treated r twenty nine point three this is paragraph nine no pritish a program approved by state apprenticeship agency and or administered or enforced by state apprenticeship council in ohio may contain only continue to function as a registered printer program under the national pressure regulations promulgated by the united states department of labor unless such program conforms to the standards prescribed in parts twenty nine and thirty of title twenty nine of regulations and then i go in detail in the complaint to explain how they did not satisfy those regulations i don't know what else they could have done other than to maybe spoon feed to the judge each an individual regulation but i did in fact cite the body of the law that creates these obligations on the defendant's program so consequently what we have here is as i said before a process and a remedy issue the remedy issue has to do with the the adequate  documents what is the consequence of not having the adequate documents that the state agency found they did not have we contend that that means that they have to vacate all of the points that they charge my client with because they don't have any documentation to support any of the claims that they made that they had good cause for getting rid of the you expect the court to make that declaration there is no that is there any regulation that says that if you don't have all of the documents you the discipline question is how do you interpret that federal regulation to have some sort of consequence when they fail to do so they are required by the federal regulatory scheme to maintain those documents for the benefit of the apprentice the entire act is for the protection safeguarding the welfare in interest of the apprentice in the program if the apprentice can't gain access to the adequate documentation to show that they had no basis for drumming i'm out of the core how's he going to be able to prove that in state court or federal court entitled to that so the question before the court before judge poster is what's the consequence of not having those documents i believe that that means that that takes that requires them to reinstate him and let him finish the program because they can't prove twenty four of the twenty seven points against him are you alive in state court anymore on anything we haven't filed in state court we went just to federal court after o c s made its decision any state procedure after the ohio administrative procedure and none your honor do you still have a breach of contract action available there is a statue limitations i believe in ohio for that is eight years so we would still have that available to us but the issues have to be decided pursue some of it is possible but my client and i have made the judgment that it would be better for a federal judicial officer decide these federal questions than to leave that to whatever judge in the wheel in cuyahoga county will be picked to take on this task we think that a federal judge can apply federal law better than a stick judge does ok so the question then is is this a fair way to put it does the failure to keep records or does the failure to keep adequate records under federal law does that tell you to keep these records lead to  your client gets to be kate all the discipline question yes or pretty close to that issue it's that the failure to have the adequate records has some sort of consequence what is that consequence judge poster never reached that issue it maybe it doesn't have a consequence not everything has a consequence maybe it doesn't but he never got a chance to argue that so the court had to assume all the facts that we pled as being true and if in fact it's true that we didn't get the documents and we couldn't prove that they had no basis whether we're in federal court or state court that's an issue for the court to decide the federal court to decide whether there is any consequence they say they have the right in fact they specifically say all we have to do is put reciting verbatim the fact that you have these rights but they don't have to honor them they said that in their brief pages in twenty four twenty five of their marriage brief we have we have we satisfied the regulatory scheme because we put this requirement for due process and incorporated the federal regulations into our contract but we're saying well that means you have to honor them but then if you're talking about whether it's if but if they're in the contract that and the question is whether they under them why isn't that just a regular state law breach question it is but it has to be decided in the context of what does federal regulatory scheme mean because they say they don't have to follow they don't have to provide the due process and there's no consequence to their not having the adequate records they're saying that the only consequences decertification the program but what does that do for my client's rights under the employment coming to the apprentice trondra it doesn't into the question of whether or not this issue's been way first of all recognize that this adequate documentation issue judge clay actually goes to is separate from the due process issue anyway and provides its own avenue for success but i don't believe based on the recitation of the allegations in the complaint in the pages of but the guards in the family farm standards that the court follows makes it very clear i think that there would be a miscarriage of justice if for some reason this due process question is allowed to slip through without a federal judge weighing in on what that regulation means and how it how they need to apply it in this case i don't envy the fact that judge pollster is going to have to ultimately decide the merits of this case if there's a federal court jurisdiction but i believe that that's ultimately where it comes down to because my client has no other remedy and i'm asking this court to give them