a letter briefs on friday and we believe that there is jurisdiction for this court that the matter is properly before you as you know as a general principle water rule twelve ninety two  to state this correctly you get to take in on the ark story appeal unless there is an exception that applies and so we set out the exceptions in our brief and as we view this case none of the exceptions sto that the mere fact that you're not trying to stop arbitration altogether but are just trying to have a district court in june and certain aspects of an arbitration that that somehow is outside our view your honor we we did our ask for this is the denial you know we we asked the court it's a similar to a motion to compel arbitration it's which has now  been denied we are asking that these arbitration is continue but that they continue per the terms of the agreement which under section four the f a a is a permissible request for us today and lawyers do deal in words i think another way to say what you did is that you want to enjoy nini class arbitration your honor i don't mean to quibble but we are you know as you said we're all about words and we're not trying to enjoin arbitrations we're in fact trying to join me what would you say the most instructive cases that would say your interpretation of this is at least open if not controlling well i believe it's the statute itself it's that the u nless we fall within an exception then we do have a right to an immediate appeal number one and then we also cited case law that really somewhat regardless of that particular issue because the the issue is fully briefed and joining the court has the discretion to take up the case and then we also pointed out that we have just written under sixteen b i believe you have to provide we barred well if a pox on we board if this is in fact something we would interpret as refusing to enjoin an arbitration do we have discretion to take it anyway i believe the court has discretion that under twelve ninety two ok ok that's our you know it's your position and you're sticking to it well that is our position we are sticking to that we also think it's the correct position what you said the other side talking about moot as i don't know what crawford started out as a class action in florida in court it was then dismissed voluntarily when we pointed out that there arbitra filed individual arbitration which is exactly what they were agreement requires that they do they then after the seventh circuit veered off from the circuits opinion and the are reported to the murphy court court action in illinois trying to take advantage of the seventh circuit the district court in illinois appropriately then transferred the case and said it had to be in terre cass county texas because that's what the agreement requires in the meantime all of these individual arbitrations they file amended arbitration statements requesting to have class arbitration means so we have all of those arbitrators most of those in the enron went so sort of in our favor not on the issue of who should have decided which we have consistently said under the agreement it should be the court but they were at least then construing the clause correctly even though we didn't think they should have been considering that they can treat it correctly until finally we end up with an arbitrator out in california who has gone completely the other direction and has said that in this applying not circuit law no aspect deciding to apply ninth circuit law instead of the law which should apply which is to circuit law under the agreement  opinion so the court and see the di lemma that we are in we have a gateway issue we have a contract that specifies where the gateway issue should be decided which is in terre county texas and yet we're being thwarted in having that done because of these just the multiplication of arbitrations that were filed all across the country and where these issues then are being submitted to the improper there's a reason we want to turn county to make the decision and that is so on an issue of enforcement we would have unitary status if you will we want more  deciding issues of force ability and that's what the agreement requires and that's what we have the only thing we've ever said in this case is we want to follow the agreement and so i have i submitted an excerpt for you so we can kind of walk us through what the agreement were troy because the issue here when you get to the delegation issue the district court applied an the court basically said if there's any plausible basis to find delegation that i'm supposed to find delegation let's not the law under under the robinson case from this court under paid core the went off on this well i find there's at least a plausible basis but he won't even for the that he said i find that it's plausible both sides it's plausible that that we're right that the appellant is right twenty twenty  right and that the court to decide also plausible that this is you know specifically in his order as a civic holding was he found plausible arguments on both sides so the problem with that rule is that that the standard is us under the right standard what do you say about paragraph seven i see you have to start paragraph two paragraph two is a non delegation clause it's specifically says the only dispute actions excluded from this agreement are and then if you go down to section eat of paragraph two so therefore these are excluded actions to enforce this agreement so the question is then let's go look at paragraph seven paragraph seven says if the employer employee disagree over issues concerning formation or meanie it is a limited delegation clause so underpaid core and under robinson those clauses were very broad and in fact they specifically said issues of enforceability will be decided by the arbitrator we have the opposite here issues in force ability or expressly xclusive from consideration under this agreement i wouldn't call it legally narrow paragraph though because the word meaning is how do you interpret disarm iteration agreement meaning you to me is a very broad or it's not in a lot of the precedent well well meaning has meaning i hope we can figure out what the word means and so if it's done ambiguous to the extent we can gives some interpretation definition i'm trying not to be redundant of the word meaning well yes your honor but i'd submit that you can't determine the meaning of meaning without looking at the entire document and not only this document but if we will still flip back to there's a second document which is a companion document that was adopted at the same time as the mutual arbitration agreement and it's a kind of a laundry list of agreements in which you gave me on page a few look at that at the bottom you see it says out seventeen reference the mutual arbitration agreement and then if you go to the very next page out eighteen paragraph twenty one again a reference to the mutual arbitration agreement and then it states any litigation or proceeding that may be brought by either party involving the enforcement of these agreements or the rights duties or obligations shall be brought exclusively into county texas so regardless of what the meaning of infortunately actions are what we have here one of our we are not here your honor arguing over the meaning of any of these clauses the meaning of the class action waivers is very clear they are arguing that those class act waivers are not in forcible and an enforcement action belongs in the courts under these agreements argument that we were to agree with you that the enforceability of the class waiver is an issue that the courts have decided but we disagree with you on the jurisdiction issue does that just make it to where you man damn a stick at the court for closing the case and not deciding so do we i mean i'm just trying to figure out procedurally what happens because it  i know but what's left to decide well he's decided what he's decided i agree with your honor on that that aspect of it is that if if you reach the merits t means would not have to reconsider where we reached the merits in a sense by saying we have no jurisdiction i'm just saying if we go that route then everything terry is done to remains has done so far is up elderly's is not affected by us and hasn't he in effect and so we don't think we need a final order we think we were allowed to take an interim walk turi appeal we would have to go ask the court to reopen the case to enter a final order from which we would then have to be back here arguing the same issues that really gets to the point of the case that we cited in our brief which is these issues really are fully briefed in terms of the merits and so rather than go through that machinations i believe the court can exercise jurisdiction to decide  if if you up hold judge means that doesn't mean this case is over that means we have to go back and get a fine who order a come back there rather than the order for means yes sure if you were to you don't have jurisdiction all your finding right now is there was no jurisdiction right or might that i mean instead of just getting the case dismissed before you well hidden one the option to refer us what i believe that what your honor is suggesting is reaching the merits and we do believe we should reach the merits we do not believe we should find that a correct legal standard was applied and you know we do think that this is a gateway issue which clearly should have been decided by  relief a final order on declaratory relief that would then be appealable so that on the on the long game we would be able to enforce our remit as appropriate right now we are taking an a motion to dismiss and the court i specifically said i'm not going to rule not yet because i would like to hear what the fifth circuit has to say on appeal before i was in the lucky tory appeal to be results so he can below and then go get a final order because of that point the only reason you would have denied the appeal was because he said the in order to order was not appealable because it's interlocutory so you would make it not into law key tory anymore and then we would have the right to hear the appeal on the merits as to whether or not the enforceability of a class waiver is an issue for the court or an issue for the arbitrator we would have that issue cleanly and straight forward in a final judgment or  finally dismissed case or whatever it is sent to arbitration in whatever capacity but it would be ready for the appeal yes you know if it were not ready today  joined the right to ask an arbitrator rather than a court to determine whether or not the arbitration related issue permits class arbitration based on would start say white say this is not about class action waivers it's certainly not about a gateway issue the way that this circus repeatedly defined what a gateway issue is it's also not and this is critical this is not an action to enforce i think that's correct i think and that's been appealed to us and one possibility is for us simply to affirm that and then the arbitrator decides t of class arbitration and i believe that that's appropriate here i think that's similar to the context of the case that you heard the forsyth case and there's not that many cases on the statute of the predecessor statute which is i thought i believe done u could be you correct me i think that's correct i think that works in tandem with the other reason why we think that the court lacks jurisdiction which is at the crawford order which is now granted this is the specific both of the specifically it's in one particular out care of everything that that's very much the praga tip of the arbitrators as to whether or not that's binding on these other people and all of that effort if it's in if it is indeed taking your position it's proper for that arbitration it's not appropriate for us to use our power to say that it's moot because of that when it's not that's being involved in the arbitration with respect your honor i think the context of what this case sought to do which is to stop arbitration stands for is not for us to analyze that's for the arbitrator to analyze the scope of the bat once they get the case back i mean i would system for once it keeps going down the road they're not getting it back there's progressing down the road but i don't understand how we can decide the case on the merits as you answer judge wieners question if you have your first position that we don't have jurisdiction if we don't have  even if it makes it cumbersome and makes this whole appeal you have double briefing or whatever we have to just rule on the preliminary injunction jurisdiction point in your the way you asked this time i don't have i don't disagree with which the bigger picture and if we don't apply it to this i'm not going to cover all the waterfront but i guess the bigger picture in this case is i don't know if you have such a huge of fact although for the reason i discussed before as as judge wright said probably not shaping arbitrations but the law in this circuit as started by a decision that was authored by drugs we enter the high court case has is a strongest of any of the circuit courts anywhere that the who decides proper the courts will have to decide again and again because it keeps coming up and the court made clear again and again that's an issue for the orbiter especially in the circumstances here where you have this broad arbitration period that refers all issues between the intervening opinion that says cor is the law but gives the system says it had were does not mean that every time it goes to the arbitrator but the question is if it's broad but not  what happens because the district court says you know you could go either way there are some arguments on either side and then it's not a clear intent to have the question of arbitrary it has to be a clear intent if literal it says all issues between the parties there's also the fact that it's explicitly incorporates the tripoli's rules and as this court has said that meeting also and then to well if there is what does it doesn't accomplish this dispute that's usually what's referred to when courts are referred to arbitrate ability on these type of gateway issues that's not what the sis that we have these cases came to the court made before judge means in the first instance they were already all all eighteen of them all of that the defendant had pending arbitrations at the time that twenty twenty five hold a case which is called import a case seeking to compel arbitration but that doesn't the point that they make about that while we have jurisdiction is exactly that point that there's not a dispute on arbitron ability they agree that it's arbitrary that's that's a sort of a friendly question that's but what do you say to opposing counsel position that other cases like our robinson itself where they use terms like enforceability validity brusquely and this doesn't use those terms i think it's  understand that i think it just happens to be that those clauses had they didn't separate enforcement from meaning and arbiter ability like we have here but i don't think that that's a difference of any significance because this issue that's before possibly misapplied the law in that respect because i think this court as it's not just one instance it's time to time again with courts discuss what unfortunate means in the context of arbitration it doesn't mean the enforcement of specific both agree to do if we apply the wrong legal standard in deciding what happens at the provision is unclear but you have a different response to that but possibly have concluded anything other than what he dead you have a broad clause you have a delegation clause which specifically delegates issues regarding the meaning of the agreement and recording over to realty all such issues to the arbitrator not to a court and then you have the reference and the court specific and explicit corporation of the triple h rules any one of those things this court has repeatedly found would support a finding that the arbitrator and not a court has to decide this class or which racial issue here we have a threat so i don't know that there could ever be a case where there's a stronger argument of a clear intent that the arbitrator decide this issue you have anything that in any case ever talks about you ever every piece of it here your argument thank you want to bet the scene of what judge means in the district court ruled on this issue of the film there would be plausible arguments on both sides at page four of his opinion which is in the record  e six ninety three after saying that he found it plausible overall just read the whole thing the court concludes that it is plausible and not wholly groundless that paragraph seven covers the parties dispute that is whether class arbitrations are permissible under the the court also concludes that it is likewise clause of all the paragraph seven when read in the context of the entire m m a which is what i've been asking the court to do there's not cover the parties dispute however under the law of this circuit whenever the scope of the arbitration clause is fairly debatable or reasonably in doubt the court to decide the question of construction in favor of arbitration that is an incorrect legal state that is not the law of this circuit and he very clearly rule that the district court applied in their own use legal standard and sent it back to them and said no the standard is clear and unmistakable evidence of delegation which is the clear standard in the circuit then based upon this reading right here he would have to change his opinion as to what is the higher our jurisdiction to make that really well i don't have anything to hatch so what we said earlier on the jurisdictional argument i believe you have jurisdiction because as we said we do not believe as this is an odd duck i'm agreeing where these exceptions can be read broadly or narrowly to effect some sort of purpose no i am not aware of any we haven't found anything like i'm not aware of any law that discusses  we said in our letter brief we we think that there is an opportunity the court has exercised jurisdiction and close calls where the matter is fully presented and there would be a economical reason for finding and we have that injunction against the arbitrator's but we also asked for the arbitrator's to compel it under section four of the f a we are entitled to an order compelling arbitration in the manner provided in the agreement we ask for that and were denied so what we have right now which i just don't see how it can be argued any other way because we have our own arbitration that is proceeding in a manner not provided for  agreement because we are being forced into a class arbitration so we've got all the stilt nielsen line of cases in the suit or in your socks for health all of those say we cannot be forced into arbitration that we did not agree to participate in