[00:00:02] Speaker 00:
Case number 19-1719, Gene O. Gene versus Parsons Corporation appellant.

[00:00:09] Speaker 00:
Mr. Schuler for the appellant, Mr. Harrington for the appellate.

[00:00:14] Speaker 03:
All right, Mr. Schuler.

[00:00:19] Speaker 03:
Mr. Schuler?

[00:00:24] Speaker 03:
Mr. Schuler?

[00:00:31] Speaker 03:
Mr. Shuler?

[00:00:38] Speaker 03:
Mr. Shuler?

[00:00:45] Speaker 03:
Madam Clerk, have we lost him?

[00:00:48] Speaker 00:
Mr. Shuler is still on the line.

[00:00:49] Speaker 00:
I am waiting for his voice to come through.

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Mr. Shuler?

[00:01:15] Speaker 03:
Mr. Schuler?

[00:01:22] Speaker 03:
Well, something's obviously wrong, Madam Clerk.

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Something must be wrong with Mr. Schuler's line.

[00:01:32] Speaker 00:
He's volume is on maximum.

[00:01:34] Speaker 03:
Mr. Harrington, are you on?

[00:01:40] Speaker 03:
Mr. Harrington, are you on?

[00:01:42] Speaker 02:
Yes, I am, Judge.

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I hope you can hear me.

[00:01:44] Speaker 03:
All right, hold on, and let's get Mr. Shuler.

[00:02:00] Speaker 04:
Your Honor, can you hear me now?

[00:02:02] Speaker 04:
Is this Mr. Shuler?

[00:02:03] Speaker 04:
It is, Your Honor.

[00:02:04] Speaker 03:
Oh, great.

[00:02:05] Speaker 03:
All right, yes.

[00:02:06] Speaker 03:
Please proceed with your opening statement, if you would.

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And my apologies if that was a hitch on my end.

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May it please the Court?

[00:02:15] Speaker 04:
The parties agree that Judge McFadden correctly applied the equivalent of a summary judgment standard in ruling on Parsons' motion to compel arbitration with its former employee, Mr. Jinn.

[00:02:27] Speaker 04:
Parsons disagrees with how Judge McFadden applied that standard to the facts of record.

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In our view, the four distinct emails Parsons delivered to Mr. Jinn, each with the subject line EDR agreement to arbitrate,

[00:02:41] Speaker 04:
effectively gave him legally sufficient notice that if he continued his employment with Parsons, then he was bound to arbitrate any future dispute about his employment.

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Mr. Jinn continued his employment for many years after receiving these emails.

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This constitutes his assent by action to be bound by the agreement.

[00:03:01] Speaker 04:
The court below found ambiguity in whether Mr. Jinn can be deemed to have signaled his assent on the premise that his inaction could be seen as rejecting the agreement.

[00:03:11] Speaker 04:
not so on the facts of this case.

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Mr. Jinn's position is that he does not recall if he saw the emails or not.

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Therefore, he cannot say he intended by his inaction to reject the agreement because he claims he does not recall being aware in the first place to have an opinion.

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Instead, the law permits and we contend it requires that this circumstance be treated exactly the same as when an individual asked to be excused from a contract because he claims he didn't bother to read it.

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it is presumed that he did.

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Under the rules of receipt and deemed notice followed by the decisions in the Seventh and Eighth Circuits cited in Parsons' briefing, the party which sends a notice by email is entitled to the presumption that the email was not just received but read, that the recipient knew of the content.

[00:04:01] Speaker 04:
Mr. Jinn cites no counter-authority to these decisions, and Parsons contends they are persuasive authority.

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Mr. Jinn has not rebutted this presumption,

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He doesn't claim he chose not to read the emails and deleted them instead.

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His rejoinder is merely that he does not recall.

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Therefore, he cannot rebut and has not rebutted the presumption that he knew the contents of the four emails.

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If Mr. Jinn either knew or is presumed to have known that his continued employment constituted his assent to arbitrate his disputes, then he must be held to his agreement because he took no step to signal his dissent.

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Said differently,

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The person's position is that this factual circumstance aligns with this court's recent decision in Camaro versus Mastro's restaurant.

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In that case, the court looked to the restatement second of contract, section 19, paren 2, which instructs that a party's conduct is not a manifestation of his assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he has sensed.

[00:05:10] Speaker 04:
Here, Mr. Jin intended to continue his employment with Parsons and he did continue it for many years.

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That is an affirmative act.

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He knew or had reason to know that Parsons would infer from his conduct that he assented to arbitrate.

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Parsons expressly told him as much four times.

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On the flip side of the coin, Mr. Jin took no action that signaled anything to the contrary to Parsons.

[00:05:37] Speaker 03:
All right.

[00:05:38] Speaker 03:
Let me ask you, Mr. Shuler, I'm confused about what the email said the employee had to sign.

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The district court said first that employees were asked, quote, to complete a certification acknowledging receipt of the agreement.

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Nothing about signing the agreement.

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But the next sentence in his order says Parsons advised employees that, quote, if you do not sign the agreement to arbitrate.

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So did the email require them to sign two times, once to certify receipt and another to agree to the agreement?

[00:06:15] Speaker 04:
The email, Your Honor, had a click the link below embedded in it and at that point there would be an electronic signature on the agreement to arbitrate.

[00:06:28] Speaker 03:
Okay, the language, the email states click here to complete the certification

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agreement to arbitrate.

[00:06:36] Speaker 03:
That's kind of garbled language.

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And then if you do not sign the agreement to arbitrate, which I assume is the same as completing the certification agreement to arbitrate.

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Is that right?

[00:06:51] Speaker 04:
Well, Your Honor, just for clarity, if you go two paragraphs down, it says, please click the link below to review the EDR problem-solving booklet and sign the certification.

[00:07:03] Speaker 04:
OK, so that's where the- Right.

[00:07:05] Speaker 03:
One certification.

[00:07:06] Speaker 03:
Okay.

[00:07:06] Speaker 03:
Thank you.

[00:07:07] Speaker 03:
Judge Garland.

[00:07:11] Speaker 05:
Yes.

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The mailbox rule, at least in the D.C.

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Court of Appeals, is only a rule about having received the document.

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It doesn't say that it's presumed that you will have read the document.

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Do you have different cases?

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I'm thinking about Kidd versus Prince, where the court states the common law rule creates a rebuttal presumption that a letter has been delivered to the addressee.

[00:07:49] Speaker 05:
There's no presumption that it's been read, is there?

[00:07:53] Speaker 04:
Not in case law to date in this circuit.

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I agree, Your Honor.

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All right.

[00:07:59] Speaker 05:
And in the Supreme Court,

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In the Suleyman case, the court said that a plaintiff who didn't remember reviewing certain disclosures and therefore, this is an Arista case, lacked actual knowledge of the fiduciary breach.

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It wasn't enough that he got the disclosures.

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He had to have actual knowledge.

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And his affidavit that he didn't read the material was enough to show that he didn't have actual knowledge.

[00:08:33] Speaker 05:
So why here doesn't this create a question of material fact, a disputed question?

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There's nothing in DC law that says notice is enough.

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And this is a contracts question in DC law.

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You have to have knowledge.

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And he says, I didn't have knowledge.

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And I understand your argument that

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or an argument that at the next phase, either jury or judge fact-deciding, somebody will decide whether that decision is right or not, whether that claim is credible or not.

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But at this stage, all we have through the mailbox rule is he got notice.

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And that seems pretty obvious.

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I don't think they're even disputing that it was delivered to his mailbox.

[00:09:30] Speaker 04:
So, Your Honor, the answer is that we think that the logic of those seventh and eighth circuit cases, which I will concede were not contract cases, but they were notice cases, are that if somebody is in a setting in which it would be expected for them to read the document, and these were work emails delivered by Mr. Jinn's employer to his work email box, it was his job to be aware of them and not to ignore them.

[00:10:00] Speaker 05:
So to me that... Yes, but the question here, this is a question only of DC law, District of Columbia law, not the law in the Seventh Circuit or any other circuit or even in our own circuit.

[00:10:11] Speaker 05:
The only question is what is the law of the District of Columbia on this question?

[00:10:21] Speaker 04:
Well, I don't think that the District of Columbia Court of Appeals has addressed the follow-on question of whether

[00:10:30] Speaker 04:
in a work setting like this there can be uh... there should be a presumption that the person not only received the document but was aware of its contents uh... and and the same way that we presume that someone is aware of the contracts of a contract uh... once they've signed it well once they've signed it uh... i'm sorry i'm not really following that yet of course if they sign it that evidence that they read it pretty good evidence that they read it

[00:10:59] Speaker 05:
What DC case are you relying on for that path?

[00:11:05] Speaker 04:
I apologize, Your Honor.

[00:11:10] Speaker 04:
It's not coming directly to mind.

[00:11:16] Speaker 04:
It was in our opening brief.

[00:11:20] Speaker 05:
I'll give you a chance to think about it, and you can tell me again on rebuttal.

[00:11:23] Speaker 05:
Thank you.

[00:11:24] Speaker 05:
Thank you, Judge Henderson.

[00:11:26] Speaker 03:
All right.

[00:11:26] Speaker 03:
Judge Piller?

[00:11:29] Speaker 01:
Good morning, Mr. Shuler.

[00:11:32] Speaker 01:
My question is about whether the appeal is proper here.

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And I realize that it may not be your fault that it comes up here.

[00:11:41] Speaker 01:
But my understanding under non-USC Section 4 and Section 16 is that the district court, if there's a material issue of disputed fact as to whether there is an agreement to arbitrate

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the district court should then, under the Federal Arbitration Act, hold a mini trial, a threshold trial, whether by jury or bench, depending on the opposing party's request, to resolve that material issue of disputed fact.

[00:12:20] Speaker 01:
And that didn't happen here.

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And I know that your briefing has said, yeah, that at least we should go back for that to happen.

[00:12:32] Speaker 01:
What did you do to bring that sort of half-fake character of the determination to the district court's attention before appealing?

[00:12:43] Speaker 04:
Your Honor, this is not to cast dispersion on anyone.

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I was local counsel, if you will, at that point in the proceeding.

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My colleague who was lead counsel is now deceased.

[00:13:01] Speaker 04:
And what happened was we did both, but we filed the notice of appeal before we filed the request with the district judge to reconsider his decision and hold a mini trial.

[00:13:13] Speaker 04:
And at that point, Judge McFadden, I think correctly, Fred, it's too late.

[00:13:18] Speaker 04:
You're already in the Court of Appeals.

[00:13:21] Speaker 01:
But you would agree with me that the district court hasn't finally determined the question whether there is an agreement to arbitrate.

[00:13:31] Speaker 01:
In other words, hasn't finally denied your petition under section four to send this case to arbitration because he hasn't ruled on the open issue of Mercurial Fact.

[00:13:46] Speaker 04:
uh... i agree with that your honor and and part of our argument as you will know from the briefing is that we think on the record of the case this court can make that determination because it becomes a question of law not a question of fact uh... but if the fact question is open then yes it was not determined by judge mcfadden because he said it was uh... a fact that could only be determined uh... after uh... uh...

[00:14:14] Speaker 01:
trial on the merits rather than uh... through the summary judgment proceeding because it was right if we were to disagree with you that the question of law in the sense that the fact of record that you have presented would uh... suffice to support mister james agreement arbitrated if we were to disagree with you on that and agree with the district court that there's a disputed issue of material fact going to that then basically we don't have

[00:14:44] Speaker 01:
collateral order review under Section 16 and we should say we should just remand for that reason.

[00:14:57] Speaker 04:
Your Honor, yes, I think that would be the proper application of the interplay between 16 and 4.

[00:15:02] Speaker 04:
Thank you.

[00:15:04] Speaker 05:
Wait, can I interrupt for just one second?

[00:15:12] Speaker 05:
Your understanding here is that the district court essentially denied you summary judgment, is that right?

[00:15:23] Speaker 05:
Yes, Your Honor.

[00:15:24] Speaker 05:
Whether on the law or on the facts, the denial of summary judgment, even if the judge denied it to you on the law, would that be appealable?

[00:15:36] Speaker 04:
your honor the effect of his denying a summary judgment was that the case was going to continue to trial to trial on the question of whether there was an agreement to arbitrate as well as the balance because the Judge McFadden at that point had everything consolidated in one package no but did he

[00:16:05] Speaker 05:
I'm confused.

[00:16:06] Speaker 05:
It says, in his opinion, it says, a jury may credit person's evidence and discredit Mr. Jin's sworn declaration.

[00:16:13] Speaker 05:
But for now, there's a genuine factual dispute.

[00:16:17] Speaker 05:
So wouldn't that mean that the first stage, the next stage has to be, I'm just following up on Judge Pillard's question, the next stage has to be a decision about whether there is a

[00:16:34] Speaker 05:
agreement to arbitrate or not?

[00:16:40] Speaker 04:
I agree, Your Honor.

[00:16:42] Speaker 05:
So what is the answer, if there is any answer to her question, why are we here?

[00:16:50] Speaker 04:
We're here, Your Honor, because Parsons filed an interlocutory appeal on the belief that it was Judge McFadden's

[00:17:02] Speaker 04:
position that we were going to proceed to an initial scheduling conference for the entirety of the case and that the question of arbitrability was going to be rolled into a trial on the merits of everything.

[00:17:16] Speaker 05:
Okay, I understand.

[00:17:18] Speaker 05:
Where do I find, I hadn't noticed that point in his opinion.

[00:17:24] Speaker 05:
Is there something, is there an order that says that, that both the

[00:17:32] Speaker 05:
I mean, what if the... I don't understand how it could be put into one.

[00:17:35] Speaker 05:
If the jury decided that there was an agreement to arbitrate, that would be the end, wouldn't it?

[00:17:45] Speaker 05:
You're not suggesting that the judge thought that he would continue on with the merits of the case, even if the jury said there wasn't.

[00:17:53] Speaker 05:
There wasn't an agreement to arbitrate.

[00:17:56] Speaker 04:
I assume not, Judge Carlin.

[00:17:58] Speaker 05:
All right, so is there something that said

[00:18:02] Speaker 05:
that he was going to have a joint trial?

[00:18:04] Speaker 05:
Is that what you're saying that he said we're going to go forward into a joint trial on both questions at the same time?

[00:18:12] Speaker 04:
That was how I believe the parties understood his position subsequent to the notice of appeal being filed when there was a review of

[00:18:29] Speaker 04:
Parsons admittedly belated request to him to hold the Section 4 trial and he said, I don't think I can do that now because the case is now out of my hands.

[00:18:43] Speaker 04:
He suggested to the parties that perhaps we could resolve this by agreeing to dismiss the appeal and proceed to a section four trial and the parties could not come to agreement on that.

[00:18:56] Speaker 04:
I'll let Mr. Herring speak to that if his recollection is different.

[00:19:03] Speaker 01:
And you, Mr. Schrodinger, go ahead Judge Garland.

[00:19:07] Speaker 05:
Just to nail this down, you can't point to anything in the

[00:19:13] Speaker 05:
record, either a status conference or an order in which the judge said he was going to combine the two.

[00:19:25] Speaker 04:
There isn't anything explicit to say that I recall, Your Honor.

[00:19:29] Speaker 01:
Well, I mean, he does then require an answer to the complaint, and he does actually, in the order that's before us on appeal,

[00:19:40] Speaker 01:
deny motion to stay proceedings and compel arbitration rather than move on to the next phase in resolving the motion to stay proceedings and compel arbitration.

[00:19:53] Speaker 01:
So I think there is some basis in the record other than what I gather is counsel's mutual understanding to show the judge proceeding forward on the merits.

[00:20:08] Speaker 03:
Well, let me ask a question.

[00:20:09] Speaker 03:
I thought

[00:20:10] Speaker 03:
Mr. Shuler, that you filed a motion for reconsideration.

[00:20:14] Speaker 03:
Did I mishear that?

[00:20:16] Speaker 04:
No, Your Honor, we did file that motion, but we filed it after filing the Notice of Appeal.

[00:20:22] Speaker 03:
I understand, and what was his ruling?

[00:20:24] Speaker 03:
He denied it without any explanation, or did he deny it and say... He denied it for lack of jurisdiction.

[00:20:32] Speaker 01:
All right, okay.

[00:20:33] Speaker 01:
The docket shows that having been filed on the same day, the motion for reconsideration and the Notice of Appeal,

[00:20:40] Speaker 01:
but that but your uh... and in fact the motion for reconsideration appeared on the docket before but it actually was submitted after in the judge took it to be belated for traditional purposes yes your honor i have a question that may it may not be met uh... ultimately material but it struck me that the that the person's policy uh...

[00:21:09] Speaker 01:
tells employees that continued employment after the effective date of the agreement to arbitrate or the new arbitration policy, the effective date, I gather, was some weeks even before the emails were sent to employees.

[00:21:23] Speaker 01:
So you wouldn't dispute that continuing to work after the effective date, but before the employee was aware that they were being asked to agree to an agreement to arbitrate, that that would not be enforceable in any way.

[00:21:39] Speaker 04:
uh... correct your honor and and just in terms of the sequencing from parsons perspective uh... the effective date was an amendment to an existing eighty our program with an agreement to arbitrate uh... so there was one in place this this agreement to arbitrate was actually an amended agreement but if you hadn't failed to show that this employee had ever agreed to be underlying which i gather you're not claiming that he had agreed to be underlying but making what in nineteen eighty eight

[00:22:08] Speaker 04:
uh... policy then that go ahead your honor is is is um... parsons was on paper records at that point in time and to date uh... mister jim's uh... records from that point in time have uh... have uh... to the extent that they still exist have not disclosed his agreement to arbitrate under a prior program i have also just a technical question i mean i know uh...

[00:22:38] Speaker 01:
parties that are trying to update their contracts in the digital world have sort of a tough time getting counterparties to respond.

[00:22:47] Speaker 01:
But one thing that I see in incoming emails sometimes is that when you open an email, it requires the sender to get a receipt showing you opened in Reddit.

[00:22:59] Speaker 01:
But that wasn't something that was used by Parsons in this instance.

[00:23:03] Speaker 04:
Am I right?

[00:23:04] Speaker 04:
That is my understanding, Your Honor.

[00:23:09] Speaker 03:
All right, let's hear from, I've lost my sheet here, Mr. Harrington.

[00:23:21] Speaker 03:
And we'll give you a couple of minutes, Mr. Shuler, in reply.

[00:23:25] Speaker 03:
So Mr. Harrington, are you still there?

[00:23:27] Speaker 02:
I am, and thank you, Your Honor, and may it please the court.

[00:23:32] Speaker 02:
Can you hear me okay?

[00:23:34] Speaker 02:
I can, yes.

[00:23:34] Speaker ?:
Okay.

[00:23:37] Speaker 02:
The district court correctly held that Parsons had not met its burden applying a summary judgment standard to demonstrate that there was a valid and enforceable agreement or contract between it and Mr. Jinn to arbitrate any employment claims.

[00:23:54] Speaker 02:
Under D.C.

[00:23:54] Speaker 02:
contract law principles and the circuit's interpretation of that law, there must be a meeting of the minds as to all material terms.

[00:24:03] Speaker 02:
And the party sought to be bound to an agreement must have taken some affirmative step to manifest an intent to be bound.

[00:24:13] Speaker 02:
And that intention to be bound must be closely examined.

[00:24:17] Speaker 02:
And this court's holdings have shown, have held that continued employment is insufficient in and of itself to manifest acceptance and that holding was,

[00:24:29] Speaker 02:
affirmed as recently as March 17th, 2020 in the decision in Kamara, the Mastro's restaurant.

[00:24:37] Speaker 02:
Mr. Jen, it's undisputed that Mr. Jen did not sign the arbitration agreement and he provided a sworn declaration, a sworn affidavit that he had no recollection of receiving the emails and also that he had never reviewed the agreement prior to Parsons motion to compel arbitration in this matter.

[00:24:57] Speaker 01:
Does it matter, Mr. Harrington, that this was an at-will employment?

[00:25:05] Speaker 02:
No, Your Honor.

[00:25:06] Speaker 02:
In terms of whether there's an enforceable contract, the fact that it's at-will employment is, in our view, not relevant.

[00:25:16] Speaker 02:
Again, Mr. Jen provided that foreign affidavit attesting to not having reviewed the agreement.

[00:25:24] Speaker 02:
He also filed EEO charges, which

[00:25:28] Speaker 02:
Obviously, that's not foreclosed by the agreement, but it was an additional indication, as Mr. Jinn said in his sworn declaration, that he had no knowledge of the arbitration agreement.

[00:25:40] Speaker 02:
And he also, in his sworn affidavit, said that he never meant to do anything to signal an intent to be bound by the agreement.

[00:25:51] Speaker 02:
And certainly his declaration is admissible evidence in Kamara, this court directly.

[00:25:56] Speaker 01:
I'm just probing the extent to which you can rely on Bailey, because there we emphasize that under DC law, it was significant that the employer had disclaimed any authority or intention to fire an employee who rejected the arbitration agreement.

[00:26:16] Speaker 01:
And in light of those facts, we held that the employees continued employment

[00:26:20] Speaker 01:
could not constitute acceptance.

[00:26:21] Speaker 01:
But here, it seems to be agreed that Parsons could have fired Mr. Jinn, given that he was at will, if it had realized that Mr. Jinn had rejected the arbitration agreement.

[00:26:37] Speaker 01:
Does that distinguish this case from Bailey?

[00:26:41] Speaker 02:
Well, certainly, this court did find that that was an important fact in Bailey.

[00:26:46] Speaker 02:
But it's certainly not something, you know,

[00:26:52] Speaker 02:
A party is not required to affirmatively reject an agreement.

[00:26:56] Speaker 02:
There must be some step taken to manifest an intent to be bound.

[00:27:01] Speaker 02:
And certainly, in this case, there's no evidence that any manager or... I'm getting feedback here.

[00:27:10] Speaker 02:
Apologies.

[00:27:11] Speaker 02:
I don't know if anyone else is getting feedback as well.

[00:27:15] Speaker 01:
No, I heard some there for a moment, but it seems to be better.

[00:27:17] Speaker 02:
Okay.

[00:27:20] Speaker 02:
But again, if you look at Kamara Judge on March 17th, in that instance, the defendant seeking to compel arbitration submitted a general manager's affidavit that he had personally presented agreements and obtained signatures from employees, and an HR director's affidavit that a database tracking whether employees had signed the agreement had in fact

[00:27:47] Speaker 02:
been updated at some point to indicate that Mr. Kamara had signed the agreement.

[00:27:53] Speaker 02:
But given Mr. Kamara's sworn declaration that he hadn't seen the agreement, hadn't signed it, or agreed to its terms, and also the fact that there was no evidence that a manager or co-worker discussed the agreement with him, this court found that there was not sufficient manifestation of any intent on the part of Mr. Kamara to be bound, and his continued employment was insufficient.

[00:28:17] Speaker 01:
I have the same question over here that I had for Mr. Shuler about whether this appeal is properly before us and you had filed a submission last week saying that you would limit your argument and not address whether this district court erred in not going to an evidentiary hearing and I'm just confused what your position is on that.

[00:28:43] Speaker 01:
Arguably, the district court only, as I mentioned, only got to the point of identifying an issue of material fact, material to whether or not there's an arbitration agreement.

[00:28:54] Speaker 01:
And I understand that your first line position, like Parsons' first line position, is that on the existing record, actually there isn't a material dispute of fact, because on undisputed facts, you prevail as a matter of law.

[00:29:05] Speaker 01:
But assuming, same assumption that I asked,

[00:29:11] Speaker 01:
Mr. Shuler, assuming that we disagree, assuming that there is a genuine material speed of fact, why wouldn't the right answer be, this is not right for our collateral review, send it back and get the district judge to finish deciding whether there's an agreement to arbitrage?

[00:29:31] Speaker 02:
I think that is the right answer, Judge, and I apologize for our late notice that we were conceding that issue and did not intend to argue it today.

[00:29:41] Speaker 02:
I'm not sure procedurally if we've been in a different position at the outset and the district still, the district court still believed it had jurisdiction to hold a bench trial or jury trial to resolve these disputed facts, whether we would have approached it differently, but we do concede at this point that there should be a

[00:30:02] Speaker 02:
a bench trial by the district court judge to resolve it.

[00:30:06] Speaker 01:
Limited to the question of the existence of an arbitration agreement.

[00:30:09] Speaker 01:
And do you share Mr. Shuler's understanding that at least at first the district judge wasn't appreciating that and was going to roll the resolution of the factual disputes on an agreement to arbitrate into resolution of the merits and have one trial and that was part of the confusion?

[00:30:27] Speaker 02:
I do think that's a fair reading of the judge's order.

[00:30:30] Speaker 02:
It was simply silent in terms of whether there should be any kind of hearing, whether a bench trial or a jury trial, to resolve what the judge said were the disputed facts.

[00:30:43] Speaker 05:
Can I just interrupt?

[00:30:44] Speaker 05:
Again, which order are you referring to?

[00:30:48] Speaker 02:
The judge's memorandum order denying the motion to compel on January 29, 2019.

[00:30:55] Speaker 05:
But that says a jury may credit person's evidence and credit Mr. Jinn's sworn declaration.

[00:31:01] Speaker 05:
But for now, there is a genuine factual dispute.

[00:31:05] Speaker 02:
Well, I appreciate it, Judge.

[00:31:06] Speaker 02:
I appreciate you pointing that out.

[00:31:07] Speaker 02:
Now that you say it, I recall that you made the same comment a few minutes ago.

[00:31:11] Speaker 02:
And I guess that could be read as a recognition by the judge that there should be some sort of jury or bench trial to resolve the facts.

[00:31:17] Speaker 02:
But there was nothing explicit in the order directing that that happened.

[00:31:22] Speaker 05:
Well, then I guess let me just repeat the question I had before.

[00:31:25] Speaker 05:
Isn't this just not within our jurisdiction?

[00:31:30] Speaker 05:
This is an interlocutory appeal of a denial of summary judgment, which we do not have jurisdiction to do because it's not a final decision.

[00:31:41] Speaker 05:
And that's the end of it.

[00:31:44] Speaker 03:
Nothing more actually can be said.

[00:31:49] Speaker 03:
I didn't hear what you said.

[00:31:50] Speaker 03:
What?

[00:31:52] Speaker 05:
Nothing more actually can be said.

[00:31:55] Speaker 05:
Interlocutory appeal from a denial of summary judgment, which is a non-final decision over which we don't have jurisdiction, period.

[00:32:05] Speaker 05:
We can't define on anything.

[00:32:07] Speaker 05:
Is that wrong or right?

[00:32:08] Speaker 05:
That's all I'm testing now.

[00:32:11] Speaker 02:
Well, certainly, I believe that that could be a supportable decision, Judge.

[00:32:15] Speaker 02:
I mean, the fact is, just because, as Mr. Shuler explained, the timing of Parsons' appeal here

[00:32:22] Speaker 02:
The district court said that it had been divested of jurisdiction.

[00:32:27] Speaker 02:
Certainly, I think, had the appeal not been filed, these disputed facts should have been resolved at the district court level.

[00:32:35] Speaker 02:
And whether this court should now opine on some of the underlying contract law principles in terms of whether continued employment is or is not sufficient to manifest acceptance

[00:32:48] Speaker 02:
I would leave that to your honors to decide, but certainly we think it would be appropriate to have the district court hold a bench trial to resolve these disputed facts.

[00:33:00] Speaker 01:
You just referred to a bench trial.

[00:33:02] Speaker 01:
You requested a jury trial on the underlying merits?

[00:33:06] Speaker 02:
On the underlying merits, correct.

[00:33:08] Speaker 01:
But you're saying you would basically waive your rights for a jury trial on the threshold question whether there is an agreement to arbitrate?

[00:33:18] Speaker 02:
We would.

[00:33:18] Speaker 02:
Our understanding of the Federal Arbitration Act is that only the party alleged to be in default in terms of the agreement may demand a jury trial.

[00:33:28] Speaker 01:
Which is your client, right?

[00:33:30] Speaker 02:
Correct.

[00:33:31] Speaker 02:
And our choice would be a bench trial in this instance.

[00:33:36] Speaker 03:
Uh-huh.

[00:33:37] Speaker 03:
Well, that's helpful.

[00:33:38] Speaker 03:
All right.

[00:33:39] Speaker 03:
Is that Judge Garland, Judge Taylor, do you have any more questions?

[00:33:45] Speaker 03:
None for me, thanks.

[00:33:47] Speaker 03:
Judge Garland?

[00:33:47] Speaker 05:
Not for me.

[00:33:48] Speaker 05:
No, thank you.

[00:33:49] Speaker 03:
All right.

[00:33:50] Speaker 03:
Thank you, Mr. Harrington.

[00:33:52] Speaker 03:
And Mr. Shuler, with respect to rebuttal, I at least would like to hear you say whether or not you agree with Mr. Harrington on the resolution of this case.

[00:34:08] Speaker 03:
And if so, then that will be the end.

[00:34:11] Speaker 04:
Meaning, Your Honor, just so that I am clear in whether if the case is remanded for the bench trial, that resolves things?

[00:34:23] Speaker 03:
Well, as far as our court, yes.

[00:34:26] Speaker 04:
Understood, Your Honor.

[00:34:28] Speaker 04:
I meant jurisdiction.

[00:34:31] Speaker 04:
Yes, Your Honor, I would agree with that.

[00:34:34] Speaker 03:
All right.

[00:34:34] Speaker 03:
Then I think unless my colleagues have any other questions,

[00:34:40] Speaker 03:
I want to thank counsel and ask the clerk to call the next case.

[00:34:45] Speaker 04:
Your Honor, just for my sake as a professional, I would like to say to Judge Garland that I was incorrect in remembering that we had cited a case in our appellate briefs on a party being bound by an agreement, even if he hasn't read it.

[00:35:00] Speaker 04:
That was actually in our briefing to the court below and was recited by the district court.

[00:35:05] Speaker 04:
So I apologize for my misrecollection.

[00:35:07] Speaker 04:
Thank you, Your Honors.

[00:35:09] Speaker 05:
No problem.

[00:35:09] Speaker 05:
There's lots of cases to remember.

[00:35:11] Speaker 05:
I can barely do it myself.

[00:35:13] Speaker 04:
Thank you.

[00:35:15] Speaker 03:
All right, Madam Clerk.