Lead Opinion
Robert Parker filed suit in California state court against several defendants, including his former employer, law firm K & L Gates, LLP, and two of its partners. Invoking arbitration and forum-selection clauses in the firm’s partnership agreement, the K & L Gates defendants moved in the District of Columbia Superior Court to compel arbitration. The Superior Court ordered the parties to arbitrate their dispute, and Mr. Parker appealed. We affirm.
I.
Kirkpatrick & Lockhart Nicholson Graham, LLP and Preston Gates & Ellis, LLP merged in 2006 to form K & L Gates. The new firm required all former partners of Preston Gates & Ellis who wished to become partners at K & L Gates to sign a supplement to the firm’s partnership agreement. Mr. Parker had been a partner at Preston Gates & Ellis, and he chose to join K & L Gates as a partner. Mr. Parker signed the supplement.
The supplement states that new partners agree to be bound by K & L Gates’s partnership agreement “as amended.” One of the amendments to the partnership agreement contains an arbitration clause. That amendment had been added to the partnership agreement before Mr. Parker signed the agreement.
A dispute later arose between Mr. Parker and K & L Gates. As a result of the dispute, Mr. Parker stopped working at K
The K & L Gates defendants (referred to hereinafter as “K & L Gates”) filed a motion to compel arbitration in Superior Court. The Superiоr Court directed the parties to proceed to arbitration. Mr. Parker filed a motion to alter or amend the judgment, pursuant to Super. Ct. Civ. R. 59(e). The trial court denied the motion, and this appeal followed.
II.
At the outset, we address two jurisdictional issues: the timeliness of the appeal and the finality of the order on appeal. We conclude that the appeal was timely and that the order on review was final.
A.
We first address whether Mr. Parker’s appeal was timely. The answer to that question depends on whether Mr. Parker’s post-judgment motion to alter or amend pursuant to Super. Ct. Civ. R. 59(e) was timely and therefore tolled the time to appeal. We conclude that Mr. Parker’s Rule 59(e) motion was timely, and that the appeal was timely as well.
The trial court’s order compelling arbitration was issued on September 6, 2011. The order was served both electronically and by mail. Mr. Parker submitted his Rule 59(e) motion to alter or amend electronically eleven days later, on September 21, 2011, and received an electronic confirmation. Although Mr. Parker’s motion was subsequently rejected but then apparently accepted and docketed, we conclude that Mr. Parker’s motion is properly understood to have been filed on September 21, 2011, the date that the elеctronic confirmation initially showed it as having been filed. Super. Ct. Civ. R. 5(e)(2)(A) (“Filing by electronic means is complete upon transmission, unless the party making the transmission learns that the attempted transmission was undelivered or undeliverable.”).
Mr. Parker’s Rule 59(e) motion therefore was timely. Allowing ten days for filing, adding three days because the order compelling arbitration was not served by hand, and excluding weekends and holidays, Mr. Parker could have timely filed his Rule 59(e) motion as late as September 23, 2011. See Super. Ct. Civ. R. 6(a), 6(e), 59(e); Wallace v. Warehouse Emps. Union #730,
B.
K & L Gates filed a motion to dismiss Mr. Parker’s appeal as having been taken from a non-final and non-appealable order. A motions division of this court denied the motion to dismiss, but directed the parties to address in their briefs “whether this court has jurisdiction over an appeal from a trial court order compelling arbitration.” K & L Gates la
The Council of the District of Columbia adopted a version of the Revised Uniform Arbitration Act (“RUAA”) in 2007.
wise would not be appealable under Title 11, a potential issue would arise under the Home Rule Act. This court has already held, however* that orders compelling arbitration in the circumstances of this case are final and appealable under Title 11. Carter v. Cathedral Ave. Coop., Inc.,
III.
We review de novo the trial court’s determination that the arbitration and forum-selection clauses at issue were valid and enforceable. See Affordable Elegance Travel, Inc. v. Worldspan, L.P., 774 A.2d
The supplement to the partnership agreement binds its signatories to K & L Gates’s partnership agreement “as amended.” One of the amendments, added before Mr. Parker signed the partnership agreement, contains the arbitration and forum-selection clauses. Therefore, by signing the supplement, Mr. Parker assented to those provisions. Davis v. Winfield,
Mr. Parker also argues on appeal that the trial court erred by failing to consider evidenсe that K & L Gates committed fraud at the time of contract formation. Because Mr. Parker alleged fraud for the first time in his Rule 59(e) motion, he has forfeited that defense. See, e.g., Pacific Ins. Co. v. American Nat’l Fire Ins. Co.,
Mr. Parker further asserts that enforcement of the forum-selection clause is unreasonable under the circumstances of this case.
Mr. Parker fails to make any of these three showings. First, we have already explained that Mr. Parker forfeited any claim of fraud. Second, although Mr. Parker asserts that arbitrating in the District of Columbia would be inconvenient, because he and most of the potential witnesses live in California, he makes no effort to explain why that inconvenience would prevent him from obtaining a remedy or effectively deprive him of his day in court. See M/S Bremen v. Zapata OffShore Co.,
In sum, we conclude that the arbitration and forum-selection clauses are valid and enforceable against Mr. Parker.
IV.
A.
The trial court determined that all оf Mr. Parker’s claims come within the scope of the arbitration clause.
Mr. Parker asserts that the arbitration clause covers only his contractual claims, not his tort and statutory claims. The broad language of the clause, however, covers “[a]ny controversy, claim or dispute ... directly or indirectly concerning this Agreement or the breach hereof or the subject matter hereof....”
Mr. Parker’s employment relationship with K & L Gates is part of the “subject matter” of the partnership agreement, and all of Mr. Parker’s contractual and non-contractual claims concern that relationship. In fact, Mr. Parker himself describes his claims as “arising from termination of his K & L Gates partnership.” We therefore conclude that the trial court did not err in interpreting the arbitration clause to apply to tort and statutory claims as well as contract claims.
B.
Finally, Mr. Parker asserts that his claim under the Age Discrimination in Employment Act of 1967 (“ADEA”), Pub.L. No. 90-202, 81 Stat. 602 (1967) (codified as amended at 29 U.S.C. § 621 et seq. (2011)), is not arbitrable, because ADEA claims are not explicitly covered by the arbitration clause. Mr. Parker relies, however, on cases that apply only to collectively bargained contracts. See Wright v. Universal Mar. Serv. Corp.,
The general rule is that federal statutory claims can be submitted to arbitration. See Gilmer v. Interstate/Johnson Lane Corp.,
V.
The parties raise one potential conflict-of-law issue: whether, under § 1281.2(c) of the California Code of Civil Procedure, the trial court should have stayed arbitration proceedings pending the outcome of the litigation in California state court.
The forum state’s choice-of-law rules apply to choice-of-law questions, unless the contract explicitly provides otherwise.
A.
Under District of Columbia choice-of-law rules, procedures of the forum normally apply.
First, courts have repeatedly treated § 1281.2 as procedural. See, e.g., Volt Info. Scis., Inc. v. Board of Trs. of Leland Stanford Junior Univ.,
Second, treating § 1281.2(c) as procedural is consistent with the line between procedure and substance drawn in our previous choice-of-law cases. See Olivarius v. Stanley J. Samoff Endowment for Cardiovascular Sci., Inc.,
Third, classifying § 1281.2(c) as procedural comports with general definitions of the term “procedure.” Although this court has not defined the terms “procedural” and “substantive” in the context of choice-of-law analysis, we have held in a different setting that a rule is procedural if it does not address “rights or liabilities” but merely “outlines the method by which the ... action may proceed....” Nunley v. Nunley,
Mr. Parker argues that the California Supreme Court, in Cronus, held that “application of California law necessarily include[s] ... § 1281.2.” Even if Mr. Parker’s characterization of the holding of Cronus were accurate, however, this court must apply its own choice-of-law rules. As we have explained, under those rules, forum procedures apply. Therefore the Superior Court would not have been required to apply § 1281.2(c) and stay the arbitration, even if California substantive law were applicable.
We therefore conclude that the trial court was correct to apply District of Columbia procedural law, and we find it is unnecessary to determine which substantive body of law governs this case.
B.
Finally, Mr. Parker asserts that the trial court offended the Full Faith and Credit Clause and the Due Process Clause of the United States Constitution by failing to apply § 1281.2(c). We conclude that, even if California substantive law governed this dispute, applying District of Columbia procedures would not violate the Full Faith and Credit Clause. See Sun Oil Co. v. Wortman,
The judgment of the trial court is therefore
Affirmed.
Notes
. K & L Gates represents that the California court stayed the proceedings in that court pending the resolution of any appeals in this court related to the Superior Court’s order compelling arbitration.
. By its terms, the RUAA now "governs an agreement to arbitrate whenever made.” D.C.Code § 16-4403(e) (2012 Repl.). The parties, moreover, do not presently dispute the RUAA’s applicability to their contract.
. Mr. Parker and K & L Gates both asserted at oral argument that the appealability of the order compelling arbitration in this case was resolved by the Supreme Court’s decision in Green Tree. Because we conсlude that the order compelling arbitration in this case was final and appealable as a matter of local law, we need not address the question whether federal law would preempt contrary local law on that point. We also note that Carter, like this case, involved a motion to compel arbitration that was filed and decided in an independent proceeding. Id. at 1051 n. 5. See generally Green Tree,
.In separate concurrences, the members of the division explain their reasons for concluding that the court is bound by Carter on this issue and not by the court’s earlier decision in American Fed’n of Gov’t Emps., AFL-CIO v. Koczak,
. The parties disagree about which substantive body of law governs their dispute. The only specific conflict of law that they assert, however, relates to Mr. Parker’s claim that the trial court should have stayed the order to compel arbitration. Accordingly, we apply District of Columbia law tо all other issues. See, e.g., C & E Servs., Inc. v. Ashland, Inc.,
. Because Mr. Parker consented to the District of Columbia as a forum, his objection to personal jurisdiction is not well founded. Although Mr. Parker appears to contend that constitutional due-process analysis must still be performed even where a party consents to jurisdiction, the law is to the contrary. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,
. We note that Mr. Parker’s allegations of fraud were cursory and inadequate to raise the issue; Mr. Parker failed to state or analyze the elements of fraud, and his main allegations were that K & L Gates engaged in forum-shopping, which is implausible for reasons stated infra at n. 9, and that he was not given a full copy of the Partnership Agreement until he requested it. Because we conclude that the issue of fraud was forfeited, we have no occasion to address K & L Gates’s alternative argument that the arbitrator, not the trial court, should have addressed Mr. Parker’s fraud allegation in the first instance.
. Mr. Parker also alleges that K & L Gates selected the District of Columbia as the forum solely because the RUAA allows a motion to compel arbitration to be filed in Superior Court, even where the motion pertains to an action that is already pending in a different court. We find this allegation of forum shopping implausible. The initial effective date of the forum-selection clause was December 14, 2006, but the RUAA was not enacted until ' December 31, 2007. 55 D.C.Reg. at 1863.
. Mr. Parker argues that the relevant question is whether enforcement of the clause would violate a strong public policy of California. The law is to the contrary: the relevant question is whether enforcement of the clause would violate a strong public policy of the District of Columbia. See, e.g., Forrest,
. We need not address whether the parties agreed to arbitrate questions related to the scope of the arbitration clause. Although the parties disputed this issue in the trial court, they no longer dispute it on appeal.
.The full text of the relevant portion of the arbitration clause states:
Any controversy, claim or dispute between or among the Partners, including but not limited to any former partners, and any controversy, claim or dispute between or among one or more Partners, including but not limited to any former partners, and the Partnership, directly or indirectly concerning this Agreement or the breach hereof or the subject matter hereof, including questions concerning the scope and applicability of this Section 12.01, shall be finally settled by a single arbitrator....
.The relevant provision states:
If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c) herein, the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.
Cal.Civ.Proc.Code § 1281.2(c) (West through 2013 Reg. Sess.).
. Mr. Parker appears to agree that District of Columbia choice-of-law rules apply.
. In some circumstances, however, a foreign jurisdiction may enforce procedural provisions of a different jurisdiction if a contract explicitly provides that another set of procedures shall govern. See, e.g., Conteh v. Allstate Ins. Co.,
. Because we find § 1281.2(c) inapplicable as a matter of local choice-of-law rules, we do not address K & L Gates's argument that the FAA would preclude application of § 1281.2(c).
. Accordingly, we deny K & L Gates’s Motion to Correct or Modify the Record, which sought to provide the court with additional information potentially relevant to the choice-of-law issue.
. See Allstate Ins. Co. v. Hague,
Concurrence Opinion
with whom EASTERLY, Associate Judge, joins, concurring:
We join the opinion of the court. Had we written it, however, we would have substituted the following footnote 4 (or equivalent in the text) for the footnote in the court’s opinion that references the concurring opinions.
4. In American Fed’n of Gov’t Emps., AFL-CIO v. Koczak,439 A.2d 478 , 479 (D.C.1981), this cоurt opined: “We hold that under section 18 of the District of Columbia Uniform Arbitration Act [UAA], D.C.Code 1978 Supp., tit. 16 app., § 18,” a trial court order compelling arbitration “is interlocutory and unappealable.” The court reached this decision by noting, first, that the statutory list of final orders in § 18 omitted “an order to compel arbitration.” Id. at 480. The court then applied a canon of statutory construction, “expressio unius est exclusio alterius,” referenced the UAA’s “meager legislative history” and found “no indication in either ... that the Council did not intend the Act’s list of appealable final orders to be exhaustive.” Id.
In the midst of its discussion of the expressio unius canon, the court also noted that this “omission ... [was] consistent with the ‘general rule that ... an order is final for purposes of appeal ... [when] it disposes of the entire case on the merits.’ ” Id. (quoting Crown Oil and Wax Co. of Delaware v. Safeco Ins. Co. of America,429 A.2d 1376 , 1379 (D.C.1981) (identifying and construing general rule of D.C.Code 1973 § 11-721(a)(1) (jurisdiction of appeals))). The court applied that rule, concluding that “[a]n order to compel arbitration does not dispose of the entire case on the merits.” Id. (citing School Committee of Agawam v. Agawam Educ. Ass’n,371 Mass. 845 ,359 N.E.2d 956 , 957 (1977) (holding non-final an order denying request to stay arbitration)).
The court then concluded its statutory analysis, stating that “the Council’s omission of an order to compel arbitration from the Act’s list of orders deemed to be final means that such an order is interlocutоry and, hence, unappealable.” Id. The court added that its construction of the UAA was “in accord with the construction arrived at by all other jurisdictions which thus far have addressed this issue.” Id. at481.[1]
Koczak’s reference to consistency with a “general rule” in the statute governing appeals, as applied to foreclose finality of an order to compel arbitration, was non-binding dictum because: (1) the decision in Koczak was limited to construction and application of the UAA; and (2) the referenced “consistent” general rule, as construed to bar finality, was not clearly “necessary”[2] or alternative[3] tothe expressio unius rationale for non-finality under the UAA, relied on in Koczak and the other states cited. Accordingly, the decision that binds us here is not Koczak but Carter v. Cathedral Ave. Coop., 658 A.2d 1047 , 1050 n. 5 (D.C.1995) — the first decision to apply in its holding the general rule under Title 11 of the D.C.Code (then § 11-721(a)(1) (1989)) as to finality of an order compelling arbitration when a party sues only to compel arbitration.
Our reasons for this strictly-construed reading of Koczak are attributable to a concern that an expansive view of a “holding” in this jurisdiction — such as the view our colleague sponsors — is likely to obstruct orderly and appropriate development of the law, whereas this court should be able to advance the law freely unless a prior decision unambiguously stands in the way, permitting change only after en banc review.
When, therefore, does a prior decision of this court reflect a “holding” that binds the division hearing the case? This court has “equated binding precedent under M.A.P. with the rule of stare decisis,” which “is never properly invoked unless in the decision put forward as precedent the judicial mind has been applied to and passed upon the precise question.”
In this case, we do not agree that Koc-zak ’s characterization of the UAA as “consistent with” this jurisdiction’s “general rule” of finality can reasonably be interpreted as part of Koczak’s holding. To us, Koczak’s statement that a reasoned, statutory ruling is merely “consistent with” some other rule of law falls outside the universe of “holdings”; it amounts, rather, to an observation that the court
We recognize that too crabbed a reading of a judicial decision can undermine the sound policy reflected in M.A.P. v. Ryan
This acknowledgment leads to our second disagreеment. Our colleague’s reasoning appears to turn on his belief that Koczak’s “consistent with” language can be part of the holding without being “necessary” to it. He stresses that “it is not accurate to say that only rulings essential to the outcome can constitute holdings.” Post at 877. He offers three examples. First, he cites a judgment that “rests on two independent and alternative rationales.” Post at 878. That can occur, but this example is inapposite here (as our colleague appears to agree). Moreover, if there were holdings truly in the alternative, each presumably would be fully developed and deemed necessary to the outcome in the absence of the other.
For the next two examples, our colleague observes that a successful defense of qualified immunity, or a ruling that preserves a conviction in the absence of plain error, reflects an outcome that would mask a significant ruling unless the holding were defined to include the threshold determination — the culpability or unpre-served trial court error — that the ultimate disposition erases. All this is true, but these examples, as our collеague would have it, do not negate the proposition that “only rulings essential to the outcome can constitute holdings.” Post at 877. Both reflect sequential, fully developed, and thus necessary two-step rulings. Ordinarily, there would be no ruling of qualified immunity without a predicate ruling of misconduct, and there would be no deci
Finally, there can be no question that the Koczak court did not perceive a jurisdictional issue anterior to the UAA interpretive issue. Indeed, our colleague acknowledges that, if the Koczak court had recognized the Home Rule Act (and thus the full Title 11) implications of its decision, the court would have “thought it quite important,” post at 877 n. 1, (we would say “felt compelled”) to reconcile the UAA and general rule theories, which Koczak — by ignoring that larger analytic framework — did not correctly do. Moreover, if the court had attempted to do so, Koczak itself presumably would have come out differently, in favor of finality and appealability, as Carter’s interpretation of the general rule under Title 11 makes clear (a result the court reaffirms today).
The sequence from Koczak to Carter to this case reveals the importance of making sure that statements claimed to be part of a holding that binds future divisions are assuredly necessary to resolution of the case in which they are made. This is especially true when, as in Koczak, the analysis underlying the “consistent with” statement not only is scanty but also omits attention to the threshold enabling legislation (Title 11), as limited by the Home Rule Act.
We are concerned that, if this court were to take seriously our colleague’s belief that Koczak’s “consistent with” language “may well” be part of the holding when “correctly interpreted,” post at 879, we would spread wide the concept of a “holding” too far. There would be a danger that prior decisions can dictate the results of future ones (absent later en banc review) when in fairness to the instant cause the prior decision should be understood for no more than its outcome, based on explicit reasons applied with clarity to described facts. The prior decision should not be construed more broadly by reference to nonessential, often ambiguous, sentences that can trigger hours of discussion as to whether the earlier decision was a binding holding or dictum.
Our colleague’s ruminations about the impact, if any, of Koczak are, without doubt, interesting. They discuss important questions that, in a proper case, would plumb the depths of what a holding is under M.A.P. v. Ryan, and whether a later court’s interpretation of that holding is binding authority when the issue comes to the court a third time. In our judgment, however, this is not a close case that justifies the extensive, including speculative, analysis our colleague offers. We therefore decline to join that analysis, in order to help assure that the court will not send an improvident signal expanding the reach of this court’s M.A.P. decision.
1. Koczak relied here on four state court decisions, all of which construed the UAA with expressio unius analysis (without citing the canon as such). None relied, in addition, on a statutory (or other) general rule of finality. See Clark County v. Empire Electric, Inc.,
2. See Lee v. United States,
3. See, e.g., Woods v. Interstate Realty Co.,
. See M.A.P. v. Ryan,
. United States v. Debruhl,
. See supra note 2.
. See supra note 4.
. Thomas v. United States,
. See supra note 2.
. See supra note 3.
. Contrary to our colleague’s observation, see post at 52, Koczak's reference to the general rule is not sequential in the sense used in his examples: building upon an essential predicate ruling.
. Lee,
. In Carter v. Cathedral Ave. Coop., Inc.,
. See supra note 3.
. The Home Rule Act prohibits the Council of the District of Columbia from legislating "with respect to any provision of Title 11” of the D.C.Code. D.C.Code § l-206.02(a)(4) (2012 Repl.).
. See supra note 5.
. After Koczak, this court held in Carter, see supra note 13, that under Title 11 of the D.C.Code an order to compel arbitration is an appealable final order when a party has sued only to compel arbitration. Therefore, had
Concurrence Opinion
concurring:
I write separately to explain why I conclude that we are bound by the holding of Carter v. Cathedral Ave. Coop., Inc.,
In Koczak, the court was interpreting the District of Columbia Uniform Arbitration Act of 1977 (“UAA”), D.C. Law 1-117, 23 D.C. Reg. 9690 (Apr. 26,1977), repealed by Arbitration Act of 2007, D.C. Law 17-111, 55 D.C.Reg. 1847, 1863 (Feb. 29, 2008). The UAA explicitly listed certain types of arbitration-related orders as final, but did not include orders compelling arbitration. Koczak,
Koczak’s conclusion that orders compelling arbitration are non-final under general principles of finality was not a stray comment. Rather, the court cited authority in support of its conclusion, and relied on that conclusion as part of the legal support for its ultimate determination that the Council intended such orders to be non-final under the UAA. See Koczak,
There is substantial authority for the principle that the legal reasoning upon which a court relies in support of a holding is itself also a holding. See, e.g., Seminole Tribe v. Florida,
On the other hand, this court has often said that reasoning “not necessary for the disposition of the ease ... constitute^] ‘dictum’ not binding on us.... ” Lee v. United States,
If only rulings essential to the outcome can constitute holdings, it is unclear at best whether the statement at issue in Koczak would properly be viewed as a holding. In my view, however, it is not
First, the Supreme Court has held that where a judgment rests on two independent and alternative rationales, both rationales are holdings rather than dicta, even though strictly speaking neither rationale would be essential to the resolution of the case. See, e.g., Woods v. Interstate Realty Co.,
Second, the Supreme Court has also held that the conclusion that an official’s conduct was unlawful .constitutes a holding even if the court goes on to rule that the official was entitled to qualified immunity because the conduct at issue did not violate clearly established law. See Camreta v. Greene, — U.S. -,
Third, this court has written many opinions concluding that an error occurred but going on to conclude that the error did not warrant reversal. Under a strict principle of necessity, the conclusions of error in such cases are non-binding dicta, rather than holdings, because they are unnecessary to the disposition of the appeal in light of the conclusion that any error did not warrant reversal. But this court consistently treats such rulings as holdings. See, e.g., Thomas v. United States,
As the foregoing suggests, I agree with the observation that, “remarkably — considering how fundamental the distinction is to a system of decision by precedent — the distinction [between holding and dictum] is fuzzy not only at the level of application but at the conceptual level.” Richard A. Posner, The Federal Courts: Crisis and Reform 252-53 (1985); see also, e.g., Metropolitan Hosp. v. United States Dep’t of Health & Human Servs.,
If the court in Carter had simply overlooked Koczak, and if the general finality discussion in Koczak were correctly viewed as a holding, then we would be bound in this case to follow Koczak rather than Carter, because Koczak was the earlier decision. See Thomas v. United States,
The contract at issue in Carter was entered into before the passage of the UAA, and the Carter court therefore was applying general principles of finality under D.C.Code § 11-721 (a)(1) (1989), rather than the UAA, which was at issue in Koc-zak.
Id. (“[In an independent proceeding] in the federal courts ... an order granting or denying relief is an appealable final decision .... Therefore, since this court finds persuasive the interpretation of the federal courts in determining their appellate jurisdiction, the order in the present case is a final order subject to appellate review.”) (internal quotation marks and citation omitted).
For reasons I have already explained, I think that Koczak, correctly interpreted, may well have held that orders compelling arbitration in independent proceedings are non-final and non-appealable under general principles of finality. It thus is not clear to me that Carter correctly interpreted Koczak. That poses the question whether I am bound to follow Koczak, as the earlier decision, or instead am bound to follow Carter’s interpretation of Koczak, even if I would conclude that Carter’s interpretation of Koczak was incorrect and that Carter actually conflicts with Koczak. Framed more generally, the question is how a later court should proceed if it believes that there is a conflict between an initial binding precedent and a subsequent decision that interpreted the initial precedent.
I do not understand this court to have decided that general question. As previously noted, this Court held in Thomas that where a division of the court confronts two conflicting prior decisions of the court, the court is obliged to follow the earlier decision.
First, as I have already noted, it is not in my view an easy question whether the statement in Koczak was a holding. It thus was not unreasonable for the division in Carter to conclude that Koczak did not preclude Carter from holding that an order compelling arbitration in an independent proceeding is final and appealable under general principles of finality law.
Second, the conclusion reached in Carter seems to me clearly correct as an original matter. We have held that an order is final “if it disposes of the whole case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already rendered.” In re Estate of Chuong,
For these reasons, I believe that the proper course in this case is to follow Carter rather than Koczak.
In his concurring opinion, Judge Ferren concludes that the passage at issue in Koc-zak is clearly not a holding. I disagree with the reasoning in Judge Ferren’s concurrence in four principal respects.
First, stressing the importance of being able to “advance the law,” Judge Ferren’s concurrence asserts that an earlier decision of this court should not be viewed as binding on later divisions unless that earlier decision “unambiguously stands in the way.” Ante at 873; see also ante at 872-73 (statement in Koczak not holding because not “clearly” necessary). Judge Ferren’s concurrence provides no authority, and I am not aware of any authority, for these assertions, under which ambiguity or lack of clarity about whether an earlier decision is a binding holding must be resolved in the negative. Such a “clear statement” rule would in my view be profoundly destabilizing to our law, given the frequency with which reasonable disputes arise about the line between dicta and holding. See generally, e.g., United States v. Johnson,
Second, also contrary to the implication in Judge Ferren’s concurrence, ante at 873-74 & n. 5, in Koczak the “judicial mind [was] applied to and passed upon the precise question” whether orders compelling arbitration are final and appealable under general principles of finality. The court’s discussion of that question was accompanied by citations to authority and stated an unambiguous and unequivocal conclusion.
Third, Judge Ferren’s concurrence is in my view internally inconsistent. On one hand, it asserts that a legal conclusion is a holding only if the legal conclusion is “necessary for the disposition of the case.” Ante at 875. On the other hand, Judge Ferren acknowledges that subsequent divi
Fourth, I do not agree with the suggestion that Koczak’s analysis is undermined by a failure to address Title 11 and the Home Rule Act. Ante at 875-76. As for Title 11, the court in Koczak cites and expressly discusses the pertinent provision of Title 11, D.C.Code § 11-721(a)(1).
. If the court in Koczak had in mind possible Home Rule Act issues, see ante at 864, however, then the court could have thought it quite important that the opinion include an explicit statement that the court’s interpretation of the UAA was consistent with its understanding of general principles of finality.
. Cases from other jurisdictions appear to take differing approaches to the question of how a court should proceed if it believes that there is a conflict between an initial binding precedent and a subsequent decision that interpreted the initial precedent. Compare, e.g., Walton v. Bisco Indus., Inc.,
. See, e.g., Farr & Co. v. Cia. Intercontinental De Navegacion De Cuba, S. A.,
. Without citation to authority, Judge Fer-ren’s concurrence states that “[ojrdinarily,” a court would not either find qualified immunity without first finding official misconduct or find lack of prejudice without first finding error. Ante at 874-75. To the contrary, courts — including this one — often assume misconduct or error and affirm on the ground of immunity or lack of prejudice. See, e.g., Camreta v. Greene, — U.S. -,
. I am puzzled by the statement in Judge Ferren's concurrence that Koczak “presumably would have come out differently’’ if the court had considered the Home Rule Act when attempting to reconcile its analysis under the UAA with its analysis under general principles of finality. Ante at 875. In fact, the court in Koczak found no discrepancy to reconcile, because it concluded that its interpretation of the UAA was "consistent with" the court’s understanding of general principles of finality.