describing this cause that we we want to go to puerto rico because we want to litigate in the federal court and in puerto rico i'm not talking about arbitration they're there representing the court that we want to be there so we can be in the federal court in puerto rico not only rico and this was an action therefore it has to be in puerto rico and that's all they're saying if that's all they're saying they're not committing to whether once it's resolved whether it's are going to or not which selection cause they're not supposed to ask the new mexico court for their right to arbitrate they have to go to puerto rico to do that i think they can ask for it back if if the only close the only for them that will be all they would for their bodies  problem with allowing the arbitrary to be selected by one party me totally discretionary including even the head of the organization one would be it's a challenge on contract grounds as a matter puerto rico law another possibility is the source of the problem is implicit in the mom and all the act itself is inconsistent with its purposes to allow it to be defeated in that manner and there's a rd would be  somewhat different approaches to thinking about when a arbitration provision has such an unfair proceeding of this in fact is one that you can't allow a statutory right to be subject to arbitration those circumstance has a chance thank you very much yes your honor i did find those cases that didn't remember them by name but i certainly remember them by holding but doesn't that sort of thinking here in terms of trying to enforce the arbitration clause the way it's written well no your honor because there are two viewpoints on that very want your honor in willis in davis the two cases we cited in our brief the court's took a different approach to the question of the enforceability of an arbitration provision that allows selection of the arbitrators by one party and that result was i guess i would describe it as a wait and see approach that is that they rejected the idea that a selection provision that says one party picks is facially or per se invalid or one in forcible and in those courts point out how the party that has the option to select arbitrators exercises that are those stats to those federal statutory rights in those cases i don't believe so your honor what does that matter some because the mcallen case is a case it's title and the thought would be it's a little bit surprising to think that a statute that's designed to protect people from discriminatory action by their employers is going to be adjudicated by the employer surprising that congress would have written that act and then thought they poxy associations you just choose to adjudicate whether they're following their procedures fairly well your honor i think it's significant that your honor has mentioned the act which is of course one of are very worried they're not on their rankings and to solve that problem we want to give them the option of having the head of the organization determine whether they complied with our statute well that's not exactly the case but it is certainly it is isn't that possible here the ron and i would go back to the case is suggesting that so you think that in a plausible way of understanding congress desire to make sure that boxing federations all of these procedures that the head of them could use their special assistant to decide whether they were in know you're not suggesting that we have to read the arbitration provision to suggest that the person who is the arbitrator can't be an employee of the federation are you i  your honor that the arbitration provision as written in total requires fair and independent arbitrators that rule on the basis of equity and right where you impose we reject that and we can slew that this  provision in the in the regulations where it which allows the head of the be able to choose the arbitrators is invalid where do we go from there because then there's the question of whether you the default is to have the district  appoint arbitrator's pursuant to section five of the arbitration act or whether the whole arbitration provision of the statute of the of the w p o falls in the cases addressed that and so were we were do we reach you go your honor to the severability provision in the arbitration agreement you've severed the arbitrator selection aspect of it which is if the court finds that unacceptable and you're left with an arbitration agreement calling for arbitration but with an unenforceable selection provision in which case the arbitration act provides the remedy the district court may select in its supervisory capacity neutral arbitrators and achieves the greatest part and of the arbitration provision consistent with the policies of the arbitration act only excising the part that the court if it were would would fund and forcible so there is a remedy he that preserves the arbitration remedy even if the the arbitration selection process fails i wouldn't concede that there is a fault in the arbitration selector provision that warrants it succeeds and of course and i would point to the district court cases that we cited in our brief and the reasoning in those cases as a basis for that position but i recognize the court has precedent in the other direction it might find more persuasive helpful to use was transferred to puerto rico and you were un dictated when you follow giraffes or that you also were seeking to compel arbitration and yet often in situations like that a party in the position of your caught up with then seek a stay of any discovery theory being if we're going to go to arbitration why should we have to go through all the burdensome discovery but you have a you  did that you allowed the discovery to proceed for quite some time you actually sought some continuances of the discovery deadline why why isn't that litigation conduct and compatible the right to see arbitration it's a matter to create your honor courts it found that when a party engages wholeheartedly full force in the discovery process as well as when of course the party seeks an adjudication on the merits or steps in that direction by a court tribunals that can be and is a way of arbitration we didn't reach that point in this case of course none of the proceedings up to the time we joined issue on the merits by filing an answer and invoking arbitration had anything to do with the merits and we never moved for summary judgment we never sought a trial setting we never had a trial setting let's look at the discovery process as far as discovery is concerned up until the your honor at which point the discovery period set by the district court's case management order was drawing to a close we did not have a ruling yet on our motion to compel arbitration and we were in the position of why why did you never see a stage of discovery that would have been the simplest most direct cleanest way of avoiding the burdock discovery for both parties if you were determined to pursue arbitration  willingness to allow discovery to unfold for months and months and months regardless of whether who would who ever was doing it seems entirely incompatible with your determination to pursue arbitration and you true that often parties and just have your client does seek a stay of discovery in exactly the situation on my terms of manners please course thank you i think it's true that was one course of action and certainly not an uncommon course of action my sense in this case was that and i was not trying to counsel but my sense of this case was that the w b i was as interested in extradition as it was an arbitration and it didn't take steps to do why the process in the district court co what we want was that way in the briefing on the motion to compel arbitration we were was raised by the other side in our response was similar to one number that i thought if i had all the time and you just after you answered by raising that desire to compel arbitration you then proactively sought discovery some of that period of time because no ruling had been made on the motion to compel our protection is that right that's right  i during that time period of time in opposing counsel ever make emotion to the district court to suggest that you had effectively waived the most of the compel arbitration by virtue of proactively seeking discovery while the motion was p