have please the court my name is gerald mathman cipher shaw l l p and i represent sterling in this litigation there are three key points to this appeal the first is the legal issue that sterling presented to the district court which was whether or not the arbitrator in this case exceeded her authority or ruled in manifest disregard of the law in her tolling order of february twenty nine two thousand and sixteen relative to the equal pay  claims that issue here we say she did the focal point of the district court order below was whether or not the arbitrator's order was sufficiently final such that it was reviewable the condition the tolling order was not conditional the certification order was fair to use it well isn't that what you're appealing now we're appealing the tolling order your honor actually appealing the district court's declining jurisdiction and determining that the order at issue the tolling order wasn't sufficiently final to be reviewed the relief that we request is a remain by this court to the district court so that he would determine the merits of our challenge to the tolling order so mr martin would you start off perhaps no since we're focusing on jurisdiction tell us why this court has jurisdiction even to hear what you are attempting to appeal because as i read the arbitration act i don't see how you get here we submit that the concept of finale is to be determined from a practical test and that flows from the supreme court's cohen decision and we believe that that's sufficient and disha finality are for four reasons the first is that the arbitrator definitively and finally decided the issue of the participation rights of thousands of individuals who sterling contends had time hard clay or that's within the tolling order of the four corners of the tolling order that we challenge when we moved to vacate it before judge reiko so section sixty one denying confirmation of an award or partial board how does this fit into a ward or partial ward all these for retribution the second was that there was no further ruling or adjudication required with respect to the to order it was decided and it was a final issue it's over it will never be related gaited much like that the plaintiffs say the conditional certification order is conditional and would be reexamined on the decertification  aspects of the case that's not true with respect to the tolling order once if we if we examine the towing order what would be left well we're not asking anyone to examine the conditional certification order that will stand the issue that we're asking you decide one without the other you can easily have one without the other it's the definition of who may participate in this particular instance the opt in claims by virtue of the  present instead the arbitrator issued a tolling order and exercise tolling for slightly over ten years back to up tobar of two thousand and thirteen if the if you remand to the district court and the district court would tolling order the could be a collective action certification order would start in october of two thousand and thirteen up through the time of judgment the tolling order is simply about who may participate in our position is that is a final order because it finally in definitively the juda kates an issue that was before the our retreat or no for their findings of fact need to be done it will never be litigated and falls within the univers be attached if if the underlying case could still be tried in times what is the underlying case without the totally order the underlying case without the tolling order would be liability potential examination of whether or not the equal pay act was violated for people from october thirteenth through the time of the trial now scheduled for march of two thousand and eighteen sign off on that precludes the arbitrator from doing something like this oh no actually the arbitrator looked at it and found that that was silent during the clause construction award which this court decided in two thousand and eleven i know i'm in that piece and i know you are your honor this particular proceeding where the tolling motion was brought in the tolling order was entered did not revert to that arbitration agreement and nothing was said about it in terms of it impacting it whatsoever e in all of this if we drill down to it to do whatever she wants she can't issue an order in manifest disregard of the law in essence she said american pipe tolling which is a creature rule twenty three would be applied for the first time to our knowledge to an equal pay act claim even when the plaintiffs conceded to her it had never been done and there's no ruling that ever did it and she said nonetheless i'm going to do it because of what i believe our notions of the unique procedural history in this case we believe that exceeded or authority was manifest just regard in the relief we seek is simply for the district court to examine that issue because the tolling order is final in terms of the issue no further litigation needs to take place on it and it falls within that area in common of an issue that can be ripe for review that is simply something short of  an explicit final judgment as we believe for those reasons that this court should reverse and allow judge raycroft to examine the merits of that issue morning your honor joseph sellers representing the claimants to please the court first of all let's be clear what the tolling order did and didn't do the tolly water granted equitable tolling based on and what it the other thing it did was it expanded the number of women who were eligible to participate in the case as you know the sterling has not appealed the conditional certification ruling that is the ruling that allowed this case to proceed to include a number of women to begin with the only question we're debating here is how many women need participate in it because it's a question of how far back the limitations period is permitted to go  damages would be if you prevail well ultimately that's about what this is about is about monetary relief and the more women who participate assuming the claims are successful the more economic exposure sterling jewellers has let me start you measure those claims right yes that's that is what what i think is ultimately an issue but that's the other thing i wanted to make clear is that this ruling if this if the court allows an appeal from this kind of ruling mr matalin describes it as a final order it's final only in the sense that there's no further ruling that's needed with respect with the conditional when the arbitrator is asked by sterling jewellers whether to decertify the ackley there's no additional fact gathering that would be needed to review that but it is not final within the within the federal arbitration a has very limited circumstances in which appeals may be taken from what it regards to be final orders this is only final to the same extent that an order compelling discovery of a database would be final it's produced it's done that's no more final and with respect to were no less final than this tolling order and if this court were to allow this kind of appeal you would be opening the door to the appeal from routine to orders to definitions of in fair fair labor standards act cases to whom people should receive who should receive notice rulings on discovery there is no end to the type of rulings that could be susceptible to a e review if the arguments that sterling argues here or are accepted finally make one last point which is sterling makes the point that they have no appeal no rights to challenge this later and we submit that's wrong the reason is that at some point later there's going to be a stage in this process where sterling is going to move to decertify equal pack elective action and he's the arbiter is going to grant it were deny it but at that point sterling may appeal from the decision to grant tolling and therefore it will have the opportunity at the appropriate time when the issue is is a joint on something that the federal arbitration a does regard to be a final order or partial final order and that is whether the collective action should finally be certified just like the title seven class with twenty three class was certified giving rise to a partial final word that was the subject of another people here so sterling is not being deprived of any opportunity eventually to challenge this particular ruling it's a question of when to do it and how often we should be in front of the  the third time we've been here and i can anticipate we mates always good to see you but it may be you may be here on multiple additional occasions one sorry i just thought you should be aware of what's com outside the scope of our authority so let's remind ourselves of what the limited scope of judicial review permitted both in this circuit and by the federal arbitration act first question is was the arbitrator authorized to reach this issue there's no question that the parties submitted to the arbitrator the question whether the claim the claim should be susceptible to conditional certification along with that the question of the temporal scope of that conditional certification which gave rise to this equitable to so that was clearly something submitted to the arbitrator for her to decide on the question of whether she manifestly disregarded the law the other ground that it greek give rise to it they cater it couldn't be clearer that the the to simply recognized in the context of the aaa rules which only provide for an opt out process the interpretations by arbitrators in the fourth circuit long john silver's case several rulings that the arbitrator herself issued that there written reason to believe that the claimants had been led to believe that they were allowed to rely on an opt out rather than opt in process that is and she characterize it as the unique circumstances in this case in an effort in a ruling that by the way well was not tech characterize it as a final or partial word it was characterized by the arbitrator as an interim award precisely the kind of award that the federal arbitration it normally does not contemplate a review of so for all those reasons respectfully we submit that the court should affirm the district court below and allow him to deny that recognize no jurisdiction exists this time even if we but that that depends on our finding we have jurisdiction even to do anything other than dismiss the well that's right sorry i should say that certainly one possibility is the dismissed the appeal what i what i meant is i don't think this court should get to the merits of the underlying question we've argued it briefly but i don't think it's before the court finality about the concept of finality and it's different things in different contexts and we believe the case law though sparse in this particular instance is supportive of sterling's position we said at the end be kept in case in the zell case which allowed appeals and to review awards that finally and definitively disposes of an independent issue separate and apart from the merits and we believe that our to order falls within that universe of very narrow claims that could be reviewed in essence and we submit that the arbitrators order that breathed life into dead claims and resuscitated thousands of those claims and enable those individuals to bring untimely claims claims that we would have to defend even if the case is decertified and then individuals file their own arbitration within the words of the cohen decision it's too important to be denied review and it's to