In Re Van Dusen
654 F.3d 838
| 9th Cir. | 2011Background
- Petitioners Sheer and Van Dusen are interstate truck drivers under ICOAs with Swift Transportation.
- They filed a class/collective action in NY federal court, later transferred to the District of Arizona, alleging FLSA violations and related claims.
- Defendants moved to compel arbitration under the ICOAs.
- Petitioners argued the ICOAs are exempt from arbitration under FAA § 1, because they are employment contracts.
- The District Court declined to rule on § 1 applicability and ordered arbitration; petitioners sought mandamus relief.
- The Ninth Circuit denied mandamus, holding the district court’s decision was not clearly erroneous and that mandamus was unavailable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1 exemption must be decided by the district court before arbitration. | Van Dusen argues exemption is threshold, not arbitrable. | Swift contends exemption can be delegated to arbitrator if clause so provides. | Exemption must be determined pre-arbitration; mandamus denied for lack of clear error. |
| Whether exemption questions are “questions of arbitrability” that can be delegated to an arbitrator. | Exemption is not arbitrability; district court must decide. | Delegation to arbitrator allowed for arbitrability questions. | Not a delegated arbitrability question; district court must assess exemption first. |
| Whether the district court’s order to arbitrate under FAA/AAA was clearly erroneous. | Court erred by avoiding § 1 ruling. | Arbitration clause validity/scope supports arbitration. | No clear error; mandamus relief denied. |
Key Cases Cited
- Bernhardt v. Polygraphic Co. of America, 350 U.S. 198 (Supreme Court 1956) (limits of FAA sections 1–3; arbitration agreement must be within FAA scope)
- Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (Supreme Court 2002) (who decides arbitrability depends on the agreement; court vs arbitrator)
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (Supreme Court 1995) (gateway issues and arbitration agreement delegation)
- AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643 (Supreme Court 1986) (arbitrability questions resolved by courts unless delegated)
- Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (Supreme Court 2010) (arbitration agreements and delegation of gateway issues)
- Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126 (9th Cir. 2000) (limit of addressing merits when considering arbitrability)
- Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (Supreme Court 1967) (first question of whether transaction involves commerce)
- Harden v. Roadway Package Sys., Inc., 249 F.3d 1137 (9th Cir. 2001) (FAA applicability when exemption applies to employment contracts)
- Republic of Nicaragua v. Standard Fruit Co., 937 F.2d 469 (9th Cir. 1991) (arbitrability and scope principles cited)