that granted the motion of the united federation of teachers and i'll use the term u f d to refer to them to dismiss kipp academies complaint for lack of subject matter jurisdiction under the rico feldman doctrine while that's the technical legal issue we he before the court today this case has dramatic real world implications for my client kipp academy a very high performing charter school in the south bronx formed in two thousand pursuant to new york's charter school act to better serve on the privileged school children  employs approximately eighty five educational professionals and eight hundred children attend its classes through k to eight the dismissal for lack of subject matter jurisdiction was based on a misapplication of the second of the four required factors for rockefeller meant to apply namely that a district court plaintiff must complain of the very injury that was caused by the prior state court judgment and that is simply not the case here now and so i suppose we agree with you on record feldman why doesn't race judicata apply given a case that actually you don't cite it which is in new york case  cannot have might not have been able to be gotten but you have a new york case directly on point from the appellate division that says so and unfortunately your honor i am not familiar with the case and i apologize to the court for that my understanding has been for several reasons the court should not even entertain at this juncture the ratio to cotton collateral estoppel arguments for among other reasons that its not part of the notice of appeal and generally speaking as you well know this court does not make decisions of first impression that have not been before the district court we can affirm the district court and any grounds yes the novo review absolutely  honor that's correct although i would again say that that would be i think on usual and then there are other reasons that i believe from a technical standpoint why the doctrines both ration card and collateral estoppel are not applicable have both doctrines are equitable and we contend that it would be fundamentally unfair in a situation like this to apply the preclusion doctrines when the  opportunistic fashion told the state court one thing which is that this dispute is governed by new york state law and then six or seven weeks later went to the n l r b and invoked in a lobby jurisdiction which has to be a concession of federal get to the substance of the thing isn't it the case that you went to state court and that you lost in state court and now you're just trying again in federal court when in fact you could have brought up all the things because you're bringing up to us in state court so you know you say don't don't look to of the technicalities and say ok i won't look  these but why isn't this a case where you took one shot in one place you could have come here directly but instead you took one shot in one place and you lost and now you're trying to get another sho i'll pick up on one thing you said your honor which is we could have come here directly this was precipitated by a decision by the n l r b called hyde which i mean that charter schools in a case which dealt with new charter schools rather than old ones you know didn't really do anything about you that that's your honor in all due respect that is an utterly meaningless the stench in there was nothing in high that says anything about a conversion charter school it says the reason we can take jurisdiction over this matter is because the people who founded the school and who operate the school are private actors they haven't they're not a political subdivision of the state there's nothing in hyde that speaks to whether a conversion school matters frankly it was an meaningless the stench in one that our opponents seized upon and that the state court on fortunately bought but if you read hyde there's nothing in there the pops and choice though was that was a new decision and we weren't sure frankly because it was new whether or not to go to federal court in a court we received the demand for arbitration from them and as you know under the c p l our if you don't do anything there are implications or ramifications and you can be penalized so if you sit on your hans and that's the injury that we complain of you are in trouble so we made a choice and we went to state court and in hindsight perhaps that was not a good choice but it is the choice that we made we believe this that this controversy is not identical it's rises out of the same facts but that doesn't make it the exact same controversy there have been new factual developments a year which also counsel against the  application of the preclusion doctrines which are and all are b charges of blocking charge by the u f c charge by us and this flippin positions which frankly is inexplicable and very opportunistic  so to get back to the initial point on worker feldman i think it's pretty clear that this was not  the u s the kipp academy complaining of injuries caused by a state court judgment the injury was extant prior to and totally independent of what the state court did the arbitration thing which was before and so rooker feldman under recent cases would not apply that's correct your honor  but it's not the same as a motion on notice they can show up or non tonality hearing there was an there was about a fifteen minute or a large oral argument your honor and the other side was not even required to submit papers so we never got an opportunity to it please the court or iana vaguely already representing the united federation of teachers it is elementary civil procedure as your honour's have pointed out that kipp cannot now relive a gate in federal court the same claims and issues that it brought and lost in ok so under the worker feldman doctrine the state court decision has to be the cause of the injury and here the state court decision denying the stay of arbitration is what caused kipps injury the injury is the arbitration a demand for arbitration doesn't cause anyone any injury it's simply putting you on notice that there will be an arbitration in the future it's akin to filing a notice of claim it doesn't have any nothing happens when you file the was the declaratory judgment that arbitration could go forward that you're so but you're either in a situation of say at the state couldn't a declaratory judgment but what it did was injury and beer for rick or feldman or if you couldn't do it then they didn't ask or didn't do and then it's that is they can't have it both ways exactly correct your honor at the denial of the stay of arbitration is what caused the arbitration to happen had the you have to file the demand for arbitration and kip not made a motion and as of this court held in von mac it doesn't matter i mean i think that this is clearly barred by ricker feldman by race judicata and collateral estoppel bar this case as well in it's the same cause of action the declaratory judgment that they are asking from the federal court is really a declaratory judgment in name only if you look at their complaint it's paragraph thirty six they want a declaratory judgment declaring has no obligation to participate in the grievance procedure no obligation to arbitrate they want a permanent stay of arbitration and that's exactly what they asked of the state court and the state court said no and they've also argued that excuse me somehow that collateral estoppel doesn't part of this case but it does because in this case the issues are identical is the u f c of the collective bargaining representative yes is there an obligation to arbitrate yes it's the it has been the us position since the inception of this litigation that the us is the collective bargaining representative of the kipp teachers and it's not only been the you have t's position that they are the collective bargaining representative of the teachers it's been the position of her in the two thousand and twelve decision in matter of cork and they decided the issue the u f c represents the teachers the state court decision found the same thing the u f c represents the teachers and thus the arbitration has to go forward like make new happened what happened is that in the face of an unlawful decertification petition that was supported by kipp academy management and circulated amongst the teacher by management  in the face of this decertification petition and that was to be filed and was filed at the n l r b the the you have to filed an unfair labor practice charge alleging you know that this was an unlawful interference and so because k high didn't talk about conversion charter schools in hyde doesn't determine this issue because what happened under hyde when the national labor relations board took jurisdiction over non conversion charter schools they weren't abrogating collective bargaining relationships for conversion charter schools it's happened i mean the n l r b has taken jurisdiction before over state court collective bargaining state rip collective bargaining relationships that have been certified by state boards and the n l r b when they take jurisdiction they can extend comedy to the state board certification of the collective bargaining representative it doesn't mean that simply because the board i don't concede that the  schools but even if they did it doesn't abrogate this collective bargaining representative of the u f c so the i mean that yes sure that i understand with respect to the flip flop which  schools the jurisdiction issue we took the position that hyde simply talked about non conversions and that it it didn't apply to conversion charter schools i mean we've taken the position the entire time and continue to take this position at the national labor relations board which as process the all ph arge that the u f c is the collective bargaining representative we've never taken a different position and simply by virtue of the decertification petition being filed at that and  we filed an unfair labor practice charge based on the unlawful actions of well if the court is in any other questions the district court decision should be affirmed it can be affirmed under the record element of action the injury was caused by the state court decision denying this day and as i said initially this is elementary civil procedure that you can't go first to state court and lewis and then come to federal court and get a second bite at the apple asking for the exact same relief under the same causes of action q thank you meaningless is simply fiction what would have happened well first of all by operation along the c p l are seventy five zero three if you don't do anything there are record and secondly and even more importantly if you sit on your hands and we actually asked both the a and the aaa to stay the arbitration they declined to do so and therefore the arbitration was proceeding on abated we could have not i guess decided not to show up and that would have resulted clearly in the fall judgment and award to the u f c the second point is that while comedy was mentioned and the board does extend comedy but i'm aware of no case in the border the federal courts in which our union has been certified by the board where there has never been a vote by the majority and that's the case here the keep teachers have never been able to vote finally to say that what does that say about this case  say that they are not the collective bargaining unit if it were not the collective bargaining unit because somehow original thing was not right i don't understand the relevance of what you're telling me to be issue it is before us once d and l are a jurisdiction or the n l r b said that though the board has jurisdiction we're now under a different scheme and there are times when the board will extend comedy where there's already been a state law finding of lawful representation but i'm not aware of that ever happening where there hasn't been any vote that all of that showed majority support which is the case here about the facts on the ground and if you prevail here where does that leave the parties we would be back at district court trying to develop a record to show i guess they would claim that collateral estoppel and ray should have caught a should apply what would you be claiming in the district court we would be claiming that based on the new evidence and the flip flop that those doctrine should not be a political and that we should be entitled to proceed  what do you mean by the flip flop could you just explain yes your honor the flip flop is in state court they said oh they're going to the n l r b after the fact or x judge understand it just wasn't sure that's what i meant so thank you very much mr cox thank you your honors well argued by both