think is perhaps the most troubling argument which involves the intersection of the confluence between  and the preemption under section three a one where there is a collective bargaining agreement it is not uncommon for a plaintiff who files fee her complaint in state court to include non fee her cause of action and state court cause of action including a course of action for breach of contract we understand we acknowledge fully that the breach of contract cause of action will necessarily implicate the collective bargaining agreement entitling the defendant to have the kids removed to federal court and that's what happened here were first of all i don't think it would even be a free her claim but if somehow the the plaintiff's claim required an interpretation of the collective bargaining agreement we acknowledge that  had to do with it is i recall the lunch hour which we acknowledged that would be that would fall under the collective bargaining agreement the collective the collective bargaining agreement in that case provides the rights that these litigants were seeking to vindicate that's not the case here are he says there is a pure discrimination harassment case  the state law prohibits discrimination apart from whatever the collective bargaining agreement that judge absolutely and that's why  preemption fact in this case i can't speak to other collective bargaining agreements but in this case and i have cited that provision there's essentially one sentence in the collective bargaining agreement and twelve nine fifty of the california government coat what judge justice is this is what really remember there's no justice on the ninth circuit just judge that's exactly what the district court said district court said that the defense of the discrimination is based upon an interpretation of the collective bargaining agreement without any further examination of the proposition if that were true then in every case where plain took brings even a strict exclusive fee her claim in state court all the defendant would have to say is there's a collective bargaining agreement we're now in freder you know even in hindsight that was the right decision for this reason the court had apparently invited me to amend the complaint to state a harassment cause of action or claim for relief that was in the first amended complaint what i did in the second amended complaint was provide even more factual basis for the harassment cl now if it's true that the pleading itself was prepared in such a way that the additional allegations were in the  in an earlier cause of action which was then incorporated by reference in the harassment claim but the point was this in the interest of judicial economy when the trial court gives me the opportunity to amend i'd much rather amend and move the case forward rather than seek an immediate appeal and perhaps reflection upon this court lose a year or a year and a half while the case is on appeal you recall this is an employment case and many of these employment cases the plaintiff has employment has been terminated it is imperative that the case be moved forward as quickly as possible so i m judgment call as i see even in retrospect it was the right decision so your state of mind was not one of contempt for the court but rather you were doing what you felt was in the interest of justice in your client's best interest is that a fair way to stay that judge absolutely if i have just a moment  it's not uncommon for a plaintiff's attorney to  take these cases on a contingency fee basis these are not money making cases i think it's very troubling that sanctions are awarded in a but if anything it was in a question of the interpretation of the law there was never any intent to delay the judicial process on the contrary so under the washington state statute the court would have to look at and interpret the collective bargaining agreement that is the fundamental basis for section three a one preemption does the court have to look at and interpret the collective bargaining agreement is different in each particular hospital to understand what cluster a particular group and you have to look at the agreement and we go no further than the plaintiff's own complaint complaint and the operative complaint for the damar that was  thing but it is the factual inquiry whether that staffing shortage in the emergency room or a case of emergency which required a volley to float outside the intensive care unit no that is that is controlled by the collective bargaining a plaintiff herself pleads in the complaint under the collective bargaining agreement and my reference here is to page one seventy seven of the record under the collective bargaining agreement and in compliance with state law and certain units were clustered in the hospital under the collective e outside of looking at the collective bargaining agreement because it varies facility by facility going further she contends in this particular case the issue is whether or not she can be made to float as an i nurse whether she can be made to float to the emergency room and in order to do her in order to determine that you have to look at the particular floating provisions of this collective bargaining agreement and i thought on  saying that the terminations was discriminatory and that all the business about going to the emergency room and all that was pretext and that's correct employer is entitled to proffer its legitimate nondiscriminatory reason for making its decision the employer's reason in this case your honor was because ms that of bali was insubordinate in refusing to care for a patient in the emergency  room so it's the defense aspect of it that is the hospital's right to put forth its legitimate nondiscriminatory reason which will necessarily implicate looking at the collective bargaining agreement which is exactly on or what the court  what the hospital did was correct you cannot judge whether or not it was insubordinate or not unless you know whether or not the hospital had the right to ask instead of bali to go to the emergency room and to ask is that a bug you go to the emergency room turns on the staffing provisions and the of the collective bargaining agreement is it is it the hospital's position that if any portion of the collective bargaining agreement is involved in your defense that there is a preemption i don't know that i would go so far as to say and but this is a this this particular provision is central to the defense it is the defense the defense to confess to the discrimination claim is we were not being discriminatory in terming you know we had a legitimate reason to terminate you which is we had every right under the agreement between the union and and the employees we had every right to ask you to do that so this is this is not a tangential claim and it certainly is not we are not basing it on as the appellant seems to argue we're not basing our position on the nondiscriminatory language in the collective bargaining group rather we are basing it primarily on the clustering language but then also on the grievance procedure language agreements in this case was started but then of than that and also on the just cost provision in the contract so i would say on those three things but primarily on the clustering that is what requires the court to look at the collective bargaining agreement to understand even what a plus there is how do you distinguish i've got three of many cases here but ramirez lindsay all the growers from jackson versus southern california gas  that at least seem to have similarities to this case and those were found not to be preempted by section three hundred and how do you distinguish those cases you're on i believe there's a lot of cases in the ninth circuit which  case called stand alone stand alone discrimination cases and it is not saying which position that every street hockey it would be preempted if there was a collective bargaining agreement and certainly that could not be the case but opposition here is our this case is different because it is not a standalone case it's not a standalone case because to proffer our legitimate nondiscriminatory reason we must rely on the language of the collective bargaining agreement which under section three hundred one of the last labor management of the alamar it requires preemption so i believe there is a line of cases which are primarily disability cases but also other fee how cases believe in his opening statement he said that if you need to interpret the collective bargaining agreement here agrees that it's preempted right so that seems like there's not much for taste left anymore based on what you've just said what i gather is an intersection clinic like a bargaining agreement in the fee her claims here to get your take on this thing it doesn't seem to me that mr katz is really disputing the meaning of the quitely bargaining agreement position is under the clustering provisions of the c b i she did not have to go to the emergency room the st louis position is on there the clustering provisions of the c b i she did have to go to the emergency room to resolve that the only document that speaks to that issue is the collective bargaining agreement and therefore you know yes there's he's made discrimination claims but on there are debt our defense absolutely requires an interpretation of these because she is taking one religion excuse me she's taking one position as to the meaning of the clustering for the provision that is i don't have to go to the emergency room and st luke's is taking the opposite position which is you do in fact have to go to the emergency room under under these provisions so that which which is the cost of action figure referring to the first cause of action here is for employment discrimination is that in the incorporated provisions here is whether or not there's there's preemption the court the courts finding as to preemption which is what's on appeal is based on the order which is this is the first amended complaint right and so the first amend the complaint is what governs with respect and ordering mr cassatt that he could file if he had sufficient facts a three a one claim which he could not because it was done work that he could file a harassment claim if he alleged sufficient  so and that he could allege those that was in the parameters of the order mr katz found the second and then the complaint essentially with the same harassment allegations and nothing changed except for the this in of two dashes in the the finding of preemption which is that finding is in the court's second order which is the order going to the first and then the complaint and he appealed the imposition of sanctions which is contained in additional questions on the preemption i think i might my primary concern was whether he has stated a claim upon which relief can be granted independent of the collective bargaining agreement then you rate reference to a first amended complaint i'm looking at the second amended complaint which was the most recent one filed to see whether there was some something in there that was the that was the reason why we had to sort of colloquy in the first place i see you're on and i but the the clustering language also appears in the second amended it does i was i was how we're focused on the first and then i understand so you're saying that the same language that was the subject of your earlier discussion is also on the it but rather there is that it's a dispute about if it's if it's completely clear and you talk about it but it's completely clear are you saying that preemption is required just because there is a collective bargaining agreement no i'm saying because you need to interpret the collective bargaining agreement everybody agrees what it means why are we interpret it that the parties don't agree what it means is that a bali says the classroom provisions say she does not have to go to the emergency room the hospital says the clustering provisions say you do have to go to the emergency room that is the end the only way to resolve that is to look at and interpret and read the clustering provisions i have a few minutes left if i the attorney was also a party you know the words of the attorney whose name was donald the ricketts was also a party to the case he's listed in the caption as a as a plaintiff and i believe that distinction because what the federal rules of appellate procedure clear i so i believe rick it retail flooring is correctly decided because the attorneys there was a parking lot that you can reconcile those cases with the berg and contrary cases because in those cases the attorney was not a party just turning very briefly to the marital we have the ability on our own though as the court of appeal in the interest of justice to address these issues regardless of the standing of the attorney  well i believe standing is a constitutional issue so i don't know that that's necessarily the case so for for a party for a non party to come before the court without standing to address something i believe research with respect to ninth circuit case law says that and i quote from the berg case because parties lack standing to appeal an order imposing sanctions against third attorney we lack of jurisdiction to review the award of sanctions  that is my understanding of the status of of the case of the nicer but even if she doesn't have standing to appeal if she's brought it to us do we not have power to look at it circuit's teaching is that it will not resolve that question is if a party does not have standing because then you do not have jurisdiction so your from your perspective whatever our view is likely we don't even have jurisdiction and it has no my reading of the cases are is has no independent duty to sue a sponsoring make that determination akari case which i cited in march papers mr katz never asked for poly the notice of appeal specifically said we appeal from the judgment in the order imposing sanctions i've got a painting of a horse at a very clear painting of a horse i've not bothered to put a little brass tag on it saying this is a painting of a horse this was an appeal from the order imposing sanctions that's notice what do you what do you say to opposing counsel's point that since the sanctions order was against you personally you're not a party t the litigation that in effect we have no jurisdiction here we do have to have a case in controversy before us before we can decide something and if so how do you have standing to argue that even though you mention it in your brief because the appeal is from the entire judgment dismissing the keys and can be violent with that imposition of sanctions but the sanctions were not awarded against your client or that they were not absolutely against me and me alone and it's your client that had the case in controversy so i'm interested in your it's florian there's no question but that the attorney happened to be a party as well so he was clearly before the court that would certainly be a sufficient basis for the courts  address this matter there's nothing in that opinion that suggests it is a necessary condition that under no circumstances can the court if it so wishes into tain hear the appeal and i think there's of it's like a lewd and attempted to allude earlier i think there's a very important policy reason that if an attorney gets it wrong i don't think i did but if an attorney gets it wrong as long as it was the call was not me to frustrate the the court  that imposing sanctions against an attorney burch makes it virtually impossible for plaintiffs in particularly in this type of case fee her claims to have the rights vindicated is there something about the nature of the administration of justice that makes this different we're talking about an attorney a member of the bar where judges of the court we  people to the bar etc etc is there something different about the nature of the administration of justice that makes this standard or if you will standing different than in a normal situation opportunity when the when the court finds that an attorney has flaunted a rule of the court has abused his authority for an improper person i the obligation of the court to impose sanctions but when that decision is incorrectly many and as i submit a signal is sent  referring to that collective bargaining agreement and therefore it was preempted by them i think the lingo and pro is is it necessary can the rights of the defendant be adjudicated only by a resort to an examination of a collective bargaining agreement because there is some difference of opinion as to the interpretation that's not what this piece is about i can see certainly obviously there maybe he says in which your assertion that the discrimination occurred here because this lady was ordered to go to the emergency room and that's your point of view that that was outside of her cluster and that's his point of view that under the collective bargaining agreement the hospital have the right to to order her to go to the emergency room and  to require some examination of the agreement there is not by any means the sum and substance of miss  what she's complaining is that her treatment as a result of her each ethnicity was different from how white employees were treated that it was done in violation if he has a prohibition against discrimination and harassment with all respect i think if that's all the if if only the the respondent would arrive at the position that it did but that's not the case it's certainly not what was alleged in the in the complaint but you do have some of her visions and here in the complaint that do clearly require an understanding of what a cluster is of staff emergency in saudi and not yes but the test is are they troubling i understand the defendant can fashion whatever defense it wants and rely exclusively on the collective bargaining agreement but a defense a claim of harassment or discrimination and we'll implicate many other factors far beyond the collective bargaining agreement that's what these cases are i don't mean to be flippant but defendant who believes his defense against the discrimination and harassment clane looking soley at the collective bargaining agreement i think is going to end up with the very unhappy result for his client