taishan at least the court of appeals in washington asked for a referral to the arbitrator it said yes we don't have that here so that's makes me wonder whether this case are truly  motion under the act and saying that those cases it's those cases contain something which could constitute a motion for to stay or to compel right so if so we're not looking for a language which asks for a dismissal that we we in the language to be that we have to find something in the in the motion practice which constitutes a motion to stay or compel in the precedence they found within the context of a motion to dismiss a request not not automatically but within the context of a motion to dismiss they also found a motion to stay or we're sorry we don't should correct me if i'm wrong but isn't there a difference between asking to have an arbitration agreement and force and asking a court to compel arbitration i mean if the if the agreement requires that the claims have to be arbitrated if they're going to be carried forward you might not care at all whether arbitration was compelled and if if the party w within the meaning of the f a appeal provision nd if the court does exercise jurisdiction the district court should be affirmed because it correctly concluded under this court's decision and page that the arbitration clause isn't broad enough to encompass a false claims act retaliation claim rd it was entirely proper for the district court to reach the scope of the arbitration clause because america waived its delegation argument and because carve out language within the  purposely chose not to see any relief under the as judge rogers questions correctly noted jurisdiction under the relevant provisions of section sixteen only authorized jurisdiction over orders denying motions to stay that are brought under section three and denying motions to compel that are brought under section four and this court's recognized in this case in other cases this is a very limited appeal provision that has to be as a basis for relief and that they never they being maraca never asked for a stay or an order compelling arbitration in their papers under the plain language of the statute and the overwhelming weight of circuit authority on this issue that's honor those cases are distinguishable and as this court recognized that the motions panel in this case recognize the jurisdiction in question here hasn't been squarely addressed in the court's prior decisions and the reason for that is that and simon in theory it's true that the moving party sought to enforce an arbitration clause by filing a motion to dismiss but as the court recognized in taylor it was clear in both of those cases that the moving party was actually trying to arbitrate the same is true of the duck case that mr barr mack referred to and i'd just like to read a line from from the the motion in that case and the moving party does specifically argued that the quote the court must compel the parties to arbitrate their claims so there was a specific request and a specific argument that the court needed to compel arbitration and what makes all those cases different from this one is that morocco never asked for any of that relief responsible oh he emphasized the fact that morocco hadn't asked for any really under the f a a and was actually trying to bar the arbitration or any any potential arbitration by seeking a dismissal with prejudice and what maraca did in reply was it double down it is good it only asked for a dismissal and it refused to ask for any relief under the f a a now i'd like to briefly address the argument that merely trying to enforce an arbitration clause is sufficient to invoke jurisdiction under section sixteen it's clearly not under the language the plain language of section sixteen there is no category that allows  appeals of orders merely denying enforcement of an arbitration clause or a border's denying motions to dismiss that are based on an arbitration clause and in the conrad case that's the th circuit decision that's been adopted by three other circuit since  was decided the moving party in that case did cite the f a a they did try to enforce an arbitration clause and the th circuit said that's not enough because this isn't a motion to compel it's not a motion to stay and the moving party hasn't asked for any of that relief and they're moving papers i'd also like to briefly address the argument iraq is brief that there should be jurisdiction because the district court's order had the same effect as an order the non emotional compel arbitration at least in the sense that both types of orders require litigation of the retaliation climb well this court started rejecting an approach to section sixteen turns on practical effect that was the holding in the arthur case and in the attack or case and the supreme court validated this approach in arthur anderson when it said the focus under section sixteen is on the category of the order appealed from does the order fit within one of those narrow categories under section sixteen counsel before you leave the jurisdictional issue is it true that if we were to agree with you and dismiss this case for lack of jurisdiction all he would have to do  a and then be right back here with the same issues no your honor that they wouldn't have a basis for going back to the district court on this issue because the district court's ruling on the scope of the arbitration clause would be law  case and they wouldn't be able to go back to district court and assert their delegation argument they didn't preserve because that argument and way there's no way for them to really raise this issue on remand if the appeal is dismissed for lack of jurisdiction moving on to the nd point if the court does exercise jurisdiction the district court should be affirmed because it correctly held under this court's decision in page that the arbitration clause isn't broad enough to encompass a false claims act retaliation cla and page the court held that an arbitration clause covering claims that arose from an agreement wasn't broad enough to cover a false claims act retaliation claim and that's because the retaliation claim didn't exist or originate because of the agreement and could be proved and maintain d independently of the agreement that same exact analysis applies here mr dorsey this false claims act retaliation claim doesn't arise out of or in connection with the agreement i arose because of the statute in mr dorsey it can maintain that claim without referring to any contractual agreement the in connection with phrase in this arbitration clause doesn't change the result from page and there's a few reasons for that the st is the phrase in connection with in the arbitration clause is still modified by the term arising it covers claims arising in connection with the agreement that's the most natural way to read restricts the scope of the clause to claims that find their origins in the contractual agreement itself again the retaliation claimed didn't originate because of the agreement it is a statutory claim that can be maintained without reference to the agreement in addition this court's looked at even broader language language extending arbitration clauses to claims that relate to agreements and said that that language still isn't enough to encompass independent claims that can be proven without reference to the agreement that was the court's decision in k b minox where it said a statutory discrimination claim didn't arise from or relate to policies and procedures because it existence didn't depend on policies and procedures and it could be proven without referring to those policies and procedures the court reached a similar conclusion the n c r court case there it said they claim that an arbitration clause covering claims relating to a software licensing agreement wasn't broad enough to encompass copyright and tort claims that can be proven and maintained and dependently of the agreement and i think it's significant to note that in and that case the court reached that conclusion even though the copyright in tort claims related to the party business relationship and even though the contract could be used to prove liability on some of those claims here with even narrower language arising in connection with language it's clear that's not broad enough to encompass a retaliation claim it didn't originate because of the agreement and can be maintained without referring to the agreed what is out the of that argument by failing to raise it until its reply brief below is mr barr max conceded in his argument that wasn't presented in the initial motion to dismiss and this court's precedent is clear that when an argument is not raised and so reply and the district court doesn't even consider it that argument is waived for purposes of appeal now as to mr barak's argument that arbiter ability wasn't really at issue  dorsey responded to the motion to dismiss i would respectfully disagree maraca asked the district court to dismiss this case with prejudice specifically on the ground that the arbitration clause was valid and broad enough  that this matter could be referred to an arbitrator for an arbitrator to determine those issues that's clearly not what america requested the nd reason the argument fails is because of the carve out language in the arbitration clau the arbitration clause it's true it doesn't corporate the aaa rules and this court held in blanton recently and incorporation of the aaa rules can cause that to develop delegation of the issue of arbiter ability but what makes this case differences different is the car about the car about says the parties have to arbitrate under the aaa rules except as provided below and what's provided below in the arbitration clause is a key carve out phrase it says the parties can pursue injunctive or equitable relief in court and here's the key phrase without st submitting the matter to mediation or arbitration so what this means is any time i case is brought in court by one of the parties a court's going to always have to address arbiter ability d by looking at the scope of that car about provision a court can't say well we've got a case here that and there may be a carve out but i've got to send this to an arbitrator so that the arbitrator can determine arbiter ability doing that would violate the contractual guarantee that the parties get to go to court without having to go to mediation or arbitration when there's a request for injunctive or other equitable re before i conclude i'd like to just briefly return to the the scope of the arbitration clause and make one final point and that's this the only types of claims that are mentioned in the arbitration clause are contractual claims the representative claims that the arbitration clause with are those regarding the negotiation interpretation execution performance and non performance of the agreement there is no mention of false claims act claims and there is no mention of statutory claims this is significant for three different reasons st in page the fact the retaliation claims were mentioned by that arbitration clause further convince the court that the retaliation claim wasn't covered nd under the doctrine of a used in generous the fact that the only representative claims listed are contractual ones indicates that other types of claims like a statutory retaliation claim aren't covered and finally the language of the arbitration clause stands in stark contrast to the severance agreement the maraca presented to mr dorsey which specifically mentions statutory claims and specifically mentions claims under the false claims act maraca knew how to make sure that an arbitration clause would cover false claims act retaliation claims and it chose not to do so i still question also from previous question about what would happen if we agreed with you on that jurisdictional issue whether they would be able to proceed and you said no because of whether they would be able to ask for a stay at that time and you know be the supply case what if we were to disagree with you on that answer does that mean that there would be jurisdiction alternative we would ask the district court's order be affirmed thank you thank you clear that he decided incorrectly for the st number one it is that he applied the wrong law and mr sanders has discussed the wrong law it doesn't