good afternoon if the police record david hare of the michigan bar for the appellant saeed someone to reserve three minutes please i want to highlight a few points and obviously rely on our brief on losing the end of  professional engineer who most recently was a thirty four year employee of the defended and was a senior engineering specialist a section manager he was working on  us army contract designing modifications to the stryker armored vehicle which is used by our soldiers overseas and throughout the the world it's kind of a modified humvee with the the bottom in two thousand and ten mr simn discovered what he believed was a major fraud in the program involving vibration testing specification misrepresentations and i think we were pretty well familiar with the fact that ok real problem here is you have an arbitrator render decision you're trying to upset the arbitrator's award right yes a guy allowed to tell us what's wrong i mean because there's a strong presumption in favor of arbitration going we're ok in the bird to set it aside and there's no question that there are cases throughout the circuits and this one that arbitration is favored and the arbitration here was presented by the employer in his or in its dispute resolution program and in their program the theory of the program is that and ultimately in the agreement for arbitration that was separately set forward in the in the district court or after the district court moved it to arbitration was that there would be a hearing there is an entire presentation in the handbook about how long an arbitration takes there will be it could take from a few hours to several days you have a right to bring position but the problem with this dispositive motion number one if the agreement not aaa but the agreement that was part of the record indicated that the dispositive motion could be brought by january eleventh two thousand and thirteen this one was brought in july of two thousand or twenty thirteen so number one it was outside the time of the stipulation number confirmation he was pro se so did anybody object to the untimely miss of the motion well the problem is that the there's nothing in writing that i've seen but the herring was on record  the motion for summary judgment there's no recording of that proceeding and is it correct because i couldn't find anything but is it accurate to say that the whoever was representing your client during that arbitration proceeding has not submitted any type of affidavit stating what the judge said or anything that was said that was not on the record and i haven't seen and when you look at the agreement there seems to be a distinction between a motion hearing or argument and the hearing just the motion hearing there's no transcript but if it were the hearing that is provided for in this agreement section thirteen requires demographic record of the hearing shall be made so doesn't that tell us that that this was not the hearing this was a preliminary matter that actually resolved because well that's interesting because the responding or the affably claims when we raise the issue that the decision was outside the time limited in the hearing but if the case was resolved on the motion their argument is that there is not a thirty day deadline and that in fact it was extended in time at the request of your client well far out beyond the time is not appropriate and it's really a jurisdictional issue that decision is void and i don't think case was the hearing here is a spaza the motion well then they didn't have a hearing i pardon me i mean but if there was no hearing within the contemplation of say paragraph what sixteen if it was just a paragraph five disposi motion hearing wasn't required by the arbitration and very well a hearing is required we can get into well i'm right i think it was on this as a hearing ordered by the arbitrator as the arbitrator deems necessary that would trigger retaliation provision for mr simn claim that that was the first and only low performance evaluation is i think the question is no whether that was a reasonable decision whether that was adverse but whether it's something that we can be perverse when it's made by an orca traitor so i i mean there are different standards of review for an orbital decision and if this was coming from a district judge and on a motion for summary judgment so what what is it about if you could focus on what you believe the standard is whether it's the f a a or something in the agreement or something in michigan law you could focus on what the standard is for vacating the arbitration award and then tell us exactly what was wrong that meets that standard i think it would be very helpful i think the standard is abuse of discretion and it's similar or identical because there are provisions it's a provisions  disputed issues of material that and i'm granting judgment what standard is that in violation for an arbitrary the same standard that a district court would have for resolving those issues but the problem is a district court decision is subject to review by an appellate court under the standard ennoble law issues of fact issues but in our been told decision does not portend of that sign review standard i think the difference i think that is correct and i would agree with that if there had been an evidentiary hearing so if the arbitrator had decided after hearing from witnesses after hearing from my client and the defense witnesses that there was no retaliation the arbitration agreement is that you have to have an evidentiary well i think not that it's and i understand your client's position not that it's unfair or he should have or it would have been better they dispose of the case without the hearing and that's the argument being made by the defendant my position is that this is an employment arbitration and everything in the employment handbook  arbitrator finds it necessary and section eight taints the deadline's hearing will be strictly enforced unless mutually agreed upon or modified by the arbitrator it seems to me this orbital agreement give the arbitrator the ability to decide that he's going to do it on motion well except that in paragraph twelve under hearing hearing on this matter will commence well it indicates that there is a mandatory hearing it's going to start a certain time there's an estimate of at least three days that describes discretionary motion hearing in order for that not to be just surplusage wouldn't that have to mean that this arbitrator could choose to resolve to tell you on this listen to the witnesses well which and i think and we don't know what he listened to what he argued because there was no record well ok i mean i i was understanding you to be saying that yes it contemplated that he could hear a dispositive motion but that would be governed by the standards that govern in both dispositive both summary judgment motions and employment law and it was contemplated that he would only grant it if it was correct to granted that is that there are no material issues of fact that it would be it would be a substitute for a factual hearing and less the law required that judgment be granted to the other side could have better myself the point is your honor that that i think is the intent of the entire agreement that if he's going to resolve factual issues he has to have hear them ok so no so now well i think that what the judge purported to do was not decide  issues but decide that there were no genuine issues of material fact that it was appropriate to grant summary judgment as in any other type of case not that i don't need to listen to the facts i already know them but it all comes back to the same question which is is what what is the deference that the f a a requires we show something else or i think the problem is there are very few we know motions for summary judgment that the deal with disputed issues of fact or no dispute a fact and that p this a an appellate court or the district court in a very difficult position if there's a hearing they found these after listening to witnesses we probably have very little if anything to to contend it has citation in the cancer case  he resolved ten issues of fact and then made a ruling and if he did that after any hearing were he listened to witnesses i think that the concern that you shouldn't have this case is ennoble on any questions of law this isn't the province of the court of appeals to decide whether or not to defer to the arbitrator's decision that was the decision that is made by the district court judge list looking at the record and deciding the case ok so let me just ask you to be specific here's a hypothetical the arbitrator has the authority to grant a dispositive motion if appropriate under the law and if no one's entitle to summary judgment then the arbitrator is to have a evidence or hearing and make a decision and the hypothetical is that the arbitrator just sides to grant summary judgment under circumstances where there are very very clear are questions of fa this is a hypothetical so that's one hypothetical and the second hypothetical is the arbitrator correctly determines that there are no issues of fact but grand summary judgment where the law wouldn't say that granted i mean we're wrong on the law so how would our standard of review apply in both of those situations well in the first instance the standard to review is that the court of appeals is not in the position of second guessing what the law was what the arbitrator's decision was because you're expanding on an area that was the province of the district court judge not the court of appeals so this has to do with the authority of the district court judge not the arbitrator the authority of first of the district court judge is the one that is first looking at the issue of whether or not to defer to the judgment of the arbitrator but that's not discretionary not i discretionary what i'm saying is a court of appeals cannot expand on the district court's view of what the appropriate standard is the district court i think judge grants issued a decision in tight entire corporation of a but brian versus united steelworkers case which is a six fifty six fed third three sixty eight case and there judge grants said quote we are for great deference to the arbitrator's decision unquote and courts quote have no business when the merits of the grievance can scam considering where there is equity to a particular claim comic or determine whether a particular language in the written instrument that will support the claim unquote little perhaps we should step back ok the and and come to a common understanding of what the standard ok that's a library betray she gives us light or arbitration cases or distinctive law from commercial arbitration cases this is a commercial arbitration case not under historic labor law but under if a correct are we all in agreement that the four reasons listed by the f a a granting the ability to overturn an arbitrator's decision governor whether this decision was overturned a whole or not that is correct  is argued on this appeal that the arbitrator exceeded its authority because he did not issue a written this is a written decision or the decision in this case which is at issue within thirty days of the hearing ok number four yes where the arbitrator theda their powers are so imperfectly executed that a mutual final and definite award upon the subject matter submitted was not correct pleadings to include major fraud against united states that resulted in judge rashes ruling to be arbitrary and capricious displaying manifest disregard of the law he argued something totally different below now for the first time second it's to my second argument and i think before you get to the second argument the reason why that argument doesn't hold water is i think judge gilman had a great quote in hall versus warden lebannon correct correctional institution  sixty six sixty two fed thirty seven forty five six circuit two thousand and eleven where he said our function is to review the case presented to the district court rather than a better case fashion court unfavorable order and that's what this is something that was race for the first time on appeal but judge we also believe that mr simn invited any error in this case and the doctrine of invited error applies you cannot complain of how long it took for judge raschid issues decision and then come back into this court and say well i know what i may have asked for him to hold off and send the record requests after the thirty days in their reply brief they came up this argument that it was after they were and it's and it's not in the record but as you as the court did note in the record his attorney withdrew asked me to for additional time so that his client would not get another war if you choose or before the thirty days he told me he was going to move to withdraw before the thirty days he was going to move to withdraw what i object to giving mr simn more time i said no i'm not could object and then he then issue his then he he actually filed his formal motion to withdraw at that point the the issue and i think judge hit it exactly on point that they want to equate the from when we had the oral argument on the motion to be a hearing as we've argued as we set out very clearly it's footnote five in our brief page thirty that this agreement has be read in its entirety in its hole and to do what appellant has argued here wouldn't be doing that be inconsistent to argue that that thirty day from hearing applies to on a motion for s judgment it's in a totally separate part of the agreement the dispositive motion follows discovery in paragraph five and it's imperative sixteen which all the paragraphs leading up to that sixteen are all about the eviden judge it is not a violation of the of the of the agreement the agreement specifically made made provision for the possibility of dispositive motion without a hearing and  louisiana d brown case judge gilman cites the case for the broader principle that louisiana d brown rejected the argument that a losing party has an absolute right to present evidence and confront witnesses in an arbitration and what he went on to say tonight quote one i'm mental fairness requires only noticed an opposite opportunity present relevant material evidence and arguments to the arbitrator's and absence of bias on the part of the arbitrator because the losing party received copies of the submissions and an opportunity to you know to respond at the motion then that's what he was entitled to under the arbitration agreement and that's exactly what he received in title to the judge apply the proper legal standards to the summary judgment motion yes and the judge did apply the proper hypothetically if the judge determined that there were no material issues of fact when there really were or let's say applied the wrong law as to what's an adverse employment action hypothetically what would be the plaintiff's rights in that regard i don't believe that's an argument that they have expressed they made an appeal but i think in the appropriate place to raise that would have been before the potentially the district court judge for to have set it aside but it would have had to been a clear error of law i mean the arbitrator's province of the f a a is it's there is it's a very narrow standard under which an arbitrator's decision should be set aside and the fact that he concluded that there were no genuine issue material fact on different issues and could rule on the motion substantively doesn't isn't something that would normally be set aside you're saying that the the standard is more restrictive then the standard that we would use ordinarily yes it  is and i think that you know is you know the courts are very clear under under the f a a that that the standard for reviewing arbitration awards is a very high standard and it's a very difficult burden to me  here the arbitrator decided he made evidentiary decisions he said there's no evidence presented to do this to do that mckenzie and as a matter of law he said he cited the mckenzie case and he said all that we had here was an argument between coworkers he totally ignored him or would have heard that there was in there was no dispute there was a communication to the government which should be enough to indicate the possibility of a key action there's no requirement in false claims nice case and a fraud and then he filed an amended complaint without that but prior to that there's no the law that requires him to know tam action or to mention kate hamond mckenzie they focused on the fact that she showed an article and then she didn't mackenzie didn't miss mackenzie didn't do anything here and she only talked internally there's no question  he discussion internally there's no question that he went to the government so by doing that and then he told his employer of that he did that and in fact his employer disciplined him because he transmitted confidential information to himself and then to the government and that's a whole another avenue if that had been raised as a and as some kind of a separate lawsuit but the point is he was doing he was conducting protective activity here which which version of the statute applies the one i mean the statute was amended and it covers employees and  contractors and i don't think that we haven't discussed preparative tiny to the because it was it was amended in two thousand and nine two thousand and ten and this conduct occurred right around that time and then the suit would have been brought after her six years so i'm not really clear which section would apply but which or human the merits that you're going to really have nothing to do with the thirty days right we're talking about ok and it really doesn't have anything to do with the comments that judge arrested made during and ethical he he had a moral and ethical responsibility to report this but a nut i'm trying to figure out where you already do this problem w how the judge built the summary judgment you dealt with well there were eight or ten issues that he resolved there's no question about that he decided that the mckenzie found him or he followed the mackenzie case because all he saw was a disagreement among coworkers and which if that was it and there was no communication to the government then perhaps he's correct but there clearly was a communication to the government he he did not address any retaliation issues like the actual evidence that he would have heard and one of the problems within my time is up one of the problems with with raising this in the district court is he acted pro se and that's one of the problems in terms of them things perhaps in the record below and i think he said all these things but maybe not directly enough and you know we take what we find in the pro se case and that's a problem thank you for your it answer thank you case will be submitted