998 F.3d 449
D.C. Cir.2021Background
- MEBA (union) and Liberty Maritime are bound by a collective bargaining agreement (CBA) establishing a four‑member Licensed Personnel Board (two union, two employer) and an arbitrator who chairs the Board and breaks 2–2 ties; the CBA states the “Arbitrator will be appointed by mutual agreement.”
- Historically the parties selected arbitrators by alternating strikes from AAA panels; in 2018 Liberty invoked the CBA’s Section 2 procedures and its two Board members met (without MEBA’s reps or counsel) and appointed an arbitrator.
- MEBA sued in federal court seeking declaratory and injunctive relief, arguing the appointment was unilateral (invalid); Liberty moved to dismiss/compel arbitration, arguing the arbitrator was validly appointed and that the arbitrator should decide his own appointment’s validity.
- The district court treated the motion as one to compel arbitration, concluded the CBA assigned the question of the arbitrator’s appointment to the arbitrator himself, dismissed the action and referred the parties to arbitration.
- The D.C. Circuit held (1) the district court’s dismissal was a final, appealable decision, (2) the question whether an arbitrator was validly appointed is presumptively for a court (a “question of arbitrability”), and (3) the CBA did not clearly and unmistakably delegate that gateway question to the arbitrator; it vacated the dismissal and remanded for the district court to decide whether the arbitrator was appointed by mutual agreement of the parties (and interpreted “mutual agreement” as agreement by the parties, not merely by Board members).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who decides whether the arbitrator was validly appointed (judge or arbitrator)? | MEBA: Court should decide; this is a gateway question of arbitrability. | Liberty: Arbitrator should decide his own appointment under the parties’ dispute‑resolution scheme. | Court: Presumptively a judicial question; arbitrator only decides if there is clear and unmistakable delegation (none here). |
| Did the CBA clearly delegate the gateway question to the arbitrator (e.g., via AAA incorporation)? | MEBA: No clear and unmistakable delegation; AAA reference is not an incorporation of AAA rules here. | Liberty: Reference to AAA and AAA Rule 3(a) shows delegation of arbitrability to arbitrator. | Court: Reference to AAA in limited fallback does not clearly and unmistakably incorporate AAA rules or delegate this gateway issue to the arbitrator. |
| Was the district court’s dismissal final and appealable? | MEBA: Implicitly treated as dismissal of complaint; appealability unclear. | Liberty: Dismissal was proper and appealable. | Court: Dismissal operated as dismissal of the action (final and appealable). |
| Does “Arbitrator will be appointed by mutual agreement” mean Board members or the parties? | MEBA: Means the parties themselves must mutually agree. | Liberty: Means the four Board members acting together may agree. | Court: Interprets “mutual agreement” to mean mutual agreement of the parties (not merely the two Board members). |
Key Cases Cited
- Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019) (parties may delegate gateway arbitrability questions to arbitrator, but delegation requires clear and unmistakable evidence)
- Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) (distinguishes procedural gateway issues presumptively for arbitrator from questions of arbitrability presumptively for courts)
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (clear‑and‑unmistakable standard for delegating arbitrability to arbitrator)
- AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643 (1986) (questions of arbitrability generally for courts absent clear delegation)
- Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (2000) (order compelling arbitration is final and appealable)
- Ciralsky v. CIA, 355 F.3d 661 (D.C. Cir. 2004) (distinguishes dismissal of complaint from dismissal of action for appealability)
- Chevron Corp. v. Ecuador, 795 F.3d 200 (D.C. Cir. 2015) (incorporation of institutional rules can effect clear delegation of arbitrability when done explicitly)
- United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29 (1987) (arbitration presupposes a consensually chosen arbitrator; selection is central to arbitration agreement)