it i just think like a and non final arbitration if that's the case in the united states district court should not have entered an order confirming it in entering judgment and that would be error on his part because question is whether we have jurisdiction to make that determination clearly you would i can't think of an instance where the district court would have improperly exercise jurisdiction and that the award was not final yet the party who has been aggrieved by that wouldn't have an immediate for this portion of the case whether that order of the harvard heard the arbitrator's decision was a final decision obviously it wasn't an award because there were other things to be done but it wasn't a final decision of the issues that were significant in our fiction i think that is the issue and the issue is finality we understand and know when the case is actually asked by the court the heart case heart surgical case and the bull information systems case the court has started chipping away at least the first circuit not this circuit has started chipping away at the long held precedent that that are questionable or that don't resolve the entire issues that have been submitted to arbitration are not subject to judicial review there has been an heart surgical in some other cases some chipping away at that longstanding policy however this the surgeon this arbitrator's decision clearly doesn't fall within those exceptions there's been no agreement by the parties to bifurcate these particular changes from all the other hundreds of changes that have been submitted to this arbitrator for review i think it probably educational to understand exactly what's happened here the parties were ordered arbitrate over nine hundred the state and not just a change nine hundred changed the arbitrator would issue decisions and then we would understand whether at the end of the day after all of those have been heard whether the contract prize would be adjusted upward down and whether the time for performing the work would be extended or retracted made less we only have began hearing we've been hearing these sense august of two thousand these several hundred changes there have been many interim the stations in that time period beginning back in november of two thousand i think is when the first session was  confirm any of those awards because the parties clearly understood that those were interim decisions that at the end of the day is essentially the scorecard would have to be tallied up and then an a decision rendered as to what the result of all the sessions on all the issues were the all obviously if this particular decision was a final decision that could be confirmed why were all the others that neither party has moved to confirm and if they are does that mean that  one year period in the federal arbitration act and the one year period in the by the statute has run that those are no longer enforceable awards clearly the parties by their actions indicated that no one believed in agreed that these  citizens of this arbitrator were going to be the final decisions that would be could be confirmed and made into a judgment and addition plain language shows that this was not a final war he had knowledge is that there's many other issues that must be resolved some by without considering other relevant evidence and while without considering other changes that are going to be considered later by the arbitrator would have extended the schedule for a period of time that seems to be the question and locke was submitted to this arbitrator for decision did he decide everything that he was called upon to decide if he did it and it's finally if he didn't then i suppose it would not they clearly did not and let me give you an easy example to understand remember what was ordered to be arbitrated for several hundred about some of but the easiest example would be on that list of things to arbitrate for instance are a number of changes which reduced the scope of work work was the lead from the contractors there are also a number of high related to the fact that the contractor did not perform the scope of work it was contractually obligated to perform those are on that list to be arbitrated both in terms of cost impact and time in fact obviously to determine whether at the end of the day once all the issues  whether the schedule should be extended or drawn back and whether the contract price should be increased or decreased you need to hear those issues as well because they very likely will result in the schedule being drawn by acting like i'm going to really mean anything  he's in fact energetically the argument will be has been made in these priests the fact that there's a judgment that exists for one hundred seven days means that the arbitrator no longer has jurisdiction to do anything about that that would mean that all of these credit time changes couldn't be considered related getting this climbing in the end of an expert that finding however the question is what does that mean there were objections posed in the state trial court over and over again saying that what was happening was reliving getting opposition was no we're simply now putting in the evidence courtney dealing it might be something they deal with the issue here and the issue that is before this court is whether there should have been an order entered and they judgment entered which was then paraded around in front of this jury with all the authority of the united states district court behind it with all the finality that was argued because it's a quote judgment you can't question this you must accept this it is a matter of law and now we have to correct that with this yes or yes the arbitrator get in fact decided everything that was presented to him at that time and his decision and he made a decision on what was presented feeling that was the scope of the arbitration he decided then that would then be it seems to me a final eventually determine who's in title a lot it was not all of the issues that were for him remember what the scope of the arbitration is the scope of the arbitration is several hundred changes and their impact on schedule and call not just these changes and there was no agreement as in some of these other cases to back for kate or to sever these particular changes get a decision on them and get a final award on then there's simply nothing in the record indicates that that was ever within the part then and lost is not an argument that we're coming back and back nor and it's one that's been out there from the very beginning that we believe that this order was in error that we had appealed it that it shouldn't be presented to the jury until it's its proxy has been determined by this court it was already has been and will continue to be argued that it was improper to put this before the jury in the fashion that it was it's essentially again i would say what this does from a policy reason if you're going to have played arbitration in construction settings and you do many times because you have so many issues and you can't get good the first catered experience construction arbitrators they give you two months of of their time in a row so you end up coming up with schedules where you hear certain issues and then district court there's going to be an appeal on it and you're going to have an avalanche of appeals rowing out of the constructions that it's clear here that there was no agreement by the parties or anyone else that these interim decisions were going to be made into final wards i don't know we'll still be arguing it was improper to put it before it we will still continue to make that argument however we will have a judgment against that we've not had a right to appeal or have heard it to be a judgment that will be used to argue done with this judgment they will argue that he has no further authority to do anything that will impact the hundred seven day the judgment entered by the federal court which means that we will of reach that conclusion before the whole game has been plate essentially elevate like the score at the end of the pardoning and moot for trial strategy reasons for a confirmation of an award before the game was over we had heard all the other issues and that clearly creates great prejudice for the nation and again i must stress there honor dealt with the arbitrator's scope of submission although it's correct that many other factors remains to be considered after the injury of that award those were not factors for consideration by this arbitrator case and this issue by comparison to many of the other cases we've looked at is that this court below had ordered the arbitrator to consider this specific issue he actually considered to discre saying is you vote for voluntary motives for what you want to use it in your trial as opposed to and it's still not really answering my jurisdictional questions and i think that's correct i think what happened in the trial court doesn't answer the jurisdictional questions here and you this particular issue is one of many many issues understand that the jury over nine months considered all the evidence that the arbitrator could not consider and that's to your honor's original question significance here and why this was a school and client stand alone award where the arbitrator considered his entire says mission on this issue is the simple fact that although things remain to be decided they didn't remain to be decided by him they only remained to be decided by the jury trial as you may recall this court previously of the federal court's order permitting the jury trial to go forward the jury trial was in its early stages it lasted ultimately i clarification to be admitted into evidence in the jury trial absent a confirmation of the district court we then went to the district court of tender confirmation and interim interest into evidence in the jury trial w of the order the confirming were the award and the clarification so all of that happened really at the insistence of the appellate here part of the language that you're seeing the appellant argue about to consider all of the issues that the jury would ultimately consider and limited because they propose clarification language in the award dismissal fact is that this is a stand alone insular issue mission is over and the only things that he mentions as limitations on his ability to make a final determination of what is a time extension what were the damages the parties were intended to explanation of the limited he's done what the parties agreed that he would do in their contract he entered an award that is finalized those just issues nothing remains for the arbitrator to do the jury then must take these consideration leaseback bindings and look at the case from a broader perspective and that's exactly what happened over a period of nine and a half months the jury heard multiple witnesses multiple evidence that permitted it to consider not just one hundred seven days and not just his finding on the arbitration over time agreement but further the as built schedule analysis of the retrospective information all of the things that by the parties agreement the arbitrator was this issue is different this issue on the time and the over time agreement stands alone the parties had a dispute about whether it was even are the trouble they go to the court the court then ordered them to arbitrate is this week issue with time specific reinsurance case which the court recognizes the policy of being able to confirm and insular stand alone award of an arbitration panel and an discreet how did that you distinguish it from all these other things that were before the arbitrator how come this was the only portion that was the parties were ordered to arbitrate because construction manager under us were a number of trade contractors who had claims on the project and the arbitrator on the other issues was considering the money value owed to trade contractors on scope changes th arbitration that dealt with how he would have back at the time of the contract that's why it's a little awkward because this fiction got created the prospect of versus retrospective how she would have back at the time of the contract evaluated time impact of the changes on in the works and she was prohibited by the party's agreement and by the court order from considering the whole issue all he could consider what's the prospect of the issue of that time and other issues these issues are somehow different than all the other issues on the list in fact these issues are on the list they're one of the nine hundred forty seven issues on the list there's nothing special about these other than they came up early and the parties for fighting about what was in what changes if you look at the scope changes lest it runs from page thirty six to play sixty nine it has over nine hundred something islands of which the ones we're talking about are only a very few and this was the only time that the any party came before him to take confirmation even though several other words have been rendered and several more will be rendered have been rendered since this confirmation order was start and neither to say that it's tricky is to put it mildly