PAUL O‘HANLON, an individual; JONATHAN ROBISON, an individual; GAYLE LEWANDOWSKI, an individual; IRMA ALLEN, an individual; PITTSBURGHERS FOR PUBLIC TRANSIT, a project of Thomas Merton Center, Inc., a Pennsylvania non-profit corporation, on behalf of themselves and all individuals similarly situated v. UBER TECHNOLOGIES, INC., a Delaware Corporation; RASIER, LLC, a Delaware Corporation; RASIER-CA, LLC, a Delaware Corporation
No. 19-3891
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 17, 2021
PRECEDENTIAL. On Appeal from the District Court for the Western District of Pennsylvania (D.C. No. 2-19-cv-00675). Magistrate Judge: Lisa P. Lenihan. Argued July 2, 2020.
Before: KRAUSE, PHIPPS, Circuit Judges, and BEETLESTONE1
Bryan M. Killian [ARGUED]
Stephanie B. Schuster
Morgan Lewis & Bockius
1111 Pennsylvania Avenue, N.W.
Suite 800 North
Washington, DC 20004
Counsel for Appellants
R. Bruce Carlson
Kelly K. Iverson
Carlson Lynch
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222
Michelle B. Iorio
Melissa Riess
Stuart J. Seaborn [ARGUED]
Disability Rights Advocates
2001 Center Street
Fourth Floor
Berkeley, CA 94704
Counsel for Appellees
KRAUSE, Circuit Judge.
As Uber would tell it, when Plaintiffs filed their disability-discrimination suit in federal court, they wound themselves in a Gordian knot: They do not have standing to sue unless they would agree to Uber‘s Terms of Use, but those terms would require Plaintiffs to arbitrate their claim instead of litigating it in federal court. Uber urges that the only way to untie this knot
This case involves new technology, but that makes Griswold no less applicable. We therefore will review only the District Court‘s arbitrability decision, as we have no obligation to review its standing decision, and Uber has not demonstrated that pendent appellate jurisdiction over that decision would be appropriate. And because we agree that Plaintiffs—who have never accepted Uber‘s terms, including its mandatory arbitration clause—cannot be equitably estopped from suing in court, we will affirm the District Court‘s order denying Uber‘s motion to compel arbitration.2
I. Background
Plaintiffs are motorized-wheelchair users who live in the Pittsburgh area and the nonprofit Pittsburghers for Public Transit, whose mission is to make “transportation . . . available and accessible to all, including people with limited mobility.” A32. They filed suit in District Court, alleging on behalf of themselves, and other similarly situated wheelchair users, that the ridesharing company Uber discriminated against individuals with mobility disabilities by not offering a “wheelchair accessible vehicle” (WAV) option in the Pittsburgh area. As charged in the complaint, this practice violated Title III of the Americans with Disabilities Act (ADA), see
Uber filed a motion to compel arbitration pursuant to the Federal Arbitration Act (FAA), see
The District Court rejected both arguments. It determined that Plaintiffs’ failure to download the Uber app, agree to the terms, and perform the “futile gesture” of requesting a WAV ride did not prevent them from pleading an injury in fact. A11 (quoting Int‘l Bhd. of Teamsters v. United States, 431 U.S. 324, 366-67 (1977)). More broadly, the District Court reasoned that Plaintiffs’ disability-discrimination claim did not rely on, or even embrace, Uber‘s Terms of Use, but was instead based on the ADA, a federal anti-discrimination statute. The Court thus declined to adopt Uber‘s “overly-broad interpretation of the law of this Circuit regarding the scope of the equitable estoppel exception to bind non-signatories to arbitration,” A9 n.4, which requires the non-signatories to have knowingly exploited the agreement for their benefit. See E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 200 (3d Cir. 2001).
Accordingly, the District Court denied the motion to compel arbitration, and Uber timely filed this interlocutory appeal.
II. Jurisdiction
The District Court had jurisdiction under
III. Discussion
On appeal, Uber primarily urges that we cannot reach the merits of the motion to compel arbitration without first determining that Plaintiffs have standing to bring their underlying ADA claim—pursuant to either our independent obligation to ensure we have jurisdiction or our pendent appellate jurisdiction. If Uber does not prevail on the standing issue, it maintains that Plaintiffs are nevertheless equitably estopped from refusing to arbitrate. For the following reasons, we conclude that we may not reach the standing issue in this interlocutory appeal and that Plaintiffs are not bound to arbitrate under an agreement they have never accepted or knowingly exploited.
A. We Have No Obligation or Authority to Review Standing
We are not persuaded by Uber‘s arguments that we either must or, in our discretion, should decide whether Plaintiffs have standing to sue. The former argument is squarely foreclosed by Griswold, which held that, on interlocutory appeal of a motion to compel arbitration, we have no independent obligation to assess the plaintiff‘s standing to sue. 762 F.3d at 269. The latter argument also falls flat, but for a different reason: Pendent appellate jurisdiction requires the nonappealable standing issue to be inextricably intertwined with the appealable arbitrability issue, see id., which, in this case, it is not. We address each argument in turn.
1. We Are Not Required to Adjudicate Plaintiffs’ Standing to Sue
Uber‘s first argument—that we must assure ourselves Plaintiffs have standing to bring their underlying claim—returns us to the familiar terrain of Griswold. There, as here, the district court concluded both that plaintiffs had Article III standing to sue and that they were not compelled to arbitrate pursuant to a contract they had never signed.3 762 F.3d at 268.
And like Uber, the appellant there argued “that [this Court has] not only the authority but the obligation to determine whether Appellees possess standing because it is a threshold jurisdictional requirement both in the district court and on appeal.” Id. (internal quotation marks and citation omitted).
We rejected that argument, cautioning that “although standing is always a threshold issue, standing to appeal should not be confused with standing to sue.” Id. at 269. Otherwise, we recognized, challenges to standing would blow a gaping hole in the final decision rule of
Griswold‘s logic is well grounded in Supreme Court precedent and applies to this case with full force. The distinction it drew between standing to appeal and standing to sue comports with the mandate that the standing analysis be tailored to the “type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). And in the context of an interlocutory appeal under the FAA, that means we look not to the plaintiff and the relief sought in the underlying action, but to “[the] litigant who asks for . . . immediate appeal” and “the category of order appealed from.” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 628 (2009) (internal quotation marks and citation omitted); see Raytheon Co. v. Ashborn Agencies, Ltd., 372 F.3d 451, 453-54 (D.C. Cir. 2004). To the extent we may “look through” to the “underlying substantive controversy,” it is for the singular purpose of “determin[ing] whether it is predicated on an action that ‘arises under’ federal law.” Vaden v. Discover Bank, 556 U.S. 49, 62 (2009). In short, what Griswold and these cases teach is that on interlocutory appeal of the denial of a motion to compel arbitration, we must assure ourselves of jurisdiction in two, and only two, respects: (1) that the appellant has standing to appeal, see id.; Griswold, 762 F.3d at 268, and (2) that, “save for [the arbitration] agreement,” the
Both requirements are met here. First, by petitioning for review under Section 4 of the FAA, Uber necessarily alleged that it was “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration.”
Uber counters that this case is controlled by Larsen v. Senate, 152 F.3d 240 (3d Cir. 1998), which requires us to resolve all jurisdictional questions on interlocutory appeal, and that, because Griswold was decided later, we are “bound by the holding in [Larsen] regardless of any conflicting language [in Griswold], if there is any.” Pardini v. Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008). The principle Uber invokes from Pardini, however, is applicable only where a subsequent panel addresses “the same issue” as the former. Id. at 426. Where there is “substantial doubt as to whether a prior panel actually decided an issue,” on the other hand, “the later panel should not be foreclosed.” Id. at 427 (citation omitted).
Such is the case here. In Larsen, a former Commonwealth justice challenged his impeachment and removal from office. Although the district court concluded the suit did not raise political questions and was justiciable, it dismissed most of the claims, holding, among other things, that any property interest in the judicial position was too “highly circumscribed,” Larsen, 152 F.3d at 245 (citation omitted)—a question it then certified for interlocutory appeal under
In urging that Larsen involved “the same issue,” Pardini, 524 F.3d at 426, as Griswold and requires any and all jurisdictional issues to be adjudicated on interlocutory appeal, Uber fails to acknowledge the context-specific inquiry for standing,
In sum, having assured ourselves of appellate jurisdiction to review the District Court‘s denial of Uber‘s motion to compel arbitration, we have no independent duty to also review its ruling that Plaintiffs have standing to sue. See Griswold, 762 F.3d at 269. We turn, then, to consider whether the doctrine of pendent appellate jurisdiction provides an alternative basis for us to review the standing ruling.
2. Pendent Appellate Jurisdiction Is Also Lacking
We have discretion to review an otherwise nonappealable issue under our pendent appellate jurisdiction where (1) it is “inextricably intertwined” with the appealable issue or (2) review is otherwise “necessary to ensure meaningful review of the appealable order.” DuPont, 269 F.3d at 203. We have cautioned, however, that this authority is “narrow and should be used sparingly,” id. (internal quotation marks and citation omitted), because overuse would “effectively undermine the final decision rule,” Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir. 1982) (en banc). Here, Uber focuses on the first prong and argues that standing to sue is “inextricably intertwined” with arbitrability. We are not persuaded.
Issues are inextricably intertwined where the appealable issue “cannot be resolved without reference to the otherwise unappealable issue,” Invista S.A.R.L. v. Rhodia, S.A., 625 F.3d 75, 88 (3d Cir. 2010) (citation omitted)—for example, if “the latter issue directly controls disposition of the former,” Kershner, 670 F.2d at 449. It is not enough, however, for the two issues to merely “arise out of the same factual matrix.” Reinig v. RBS Citizens, N.A., 912 F.3d 115, 130 (3d Cir. 2018). If “we are confronted with two similar, but independent, issues,” there is no need for pendent appellate jurisdiction so long as “resolution of the non-appealable order would require us to conduct an inquiry that is distinct from . . . the inquiry required to resolve solely the [appealable] issue.” Id. (quoting Myers v. Hertz Corp., 624 F.3d 537, 553-54 (2d Cir. 2010) (citation omitted)). Simply put, if we can adjudicate the appealable order “without venturing into otherwise nonreviewable matters, we have no need—and therefore no power—to examine” those matters. Id. at 131 (internal quotation marks and citations omitted).
Such was the case in Griswold, which involved the same nonappealable issue of standing and appealable issue of arbitrability, but the facts necessary for determining standing were different from the facts necessary to decide whether, under the equitable-estoppel doctrine, “a non-signatory to the . . . agreement . . . can be bound to its arbitration clause because it reaped the benefits of the contract.” 762 F.3d at 270. Because “the factual underpinnings of the [two] issues [we]re distinct,” id., we declined to exercise pendent appellate jurisdiction.
And such is the case here, where the facts necessary to evaluate whether Plaintiffs have demonstrated standing under the ADA are different from the facts necessary for assessing whether they are bound by Uber‘s Terms of Use. Uber likens this case to In re Majestic Star Casino, LLC, where we analyzed standing to sue after concluding that we could not “address the merits” of the appeal without also assessing “whether the Debtors ha[d] standing.” 716 F.3d 736, 747 (3d Cir. 2013). Here, however, the only link Uber has established between the issues of injury-in-fact under the ADA and arbitrability under the FAA is its own theory that both arise from its Terms of Use. That does not mean, however, that the question whether Plaintiffs are equitably estopped from rejecting the arbitration clause “cannot be resolved without reference to” Plaintiffs’ standing to claim discrimination. Invista, 625 F.3d at 88. The two issues are not inextricably intertwined, so we will not review standing to sue under our pendent appellate jurisdiction.4 See DuPont, 269 F.3d at 203.
B. Equitable Estoppel Does Not Bind Plaintiffs to Arbitrate
We turn finally to Uber‘s motion to compel arbitration under Section 4 of the FAA.5 While the FAA “creates substantive federal law regarding the enforceability of arbitration agreements, requiring courts to place such agreements upon the same footing as other contracts,” Arthur Andersen, 556 U.S. at 630 (internal quotation marks and citation omitted), it does not “alter background principles of state contract law regarding the scope of agreements,” id. Those background principles include “doctrines [like estoppel] that authorize the enforcement of a contract [against] a nonsignatory.” GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1643 (2020); see also Bouriez v. Carnegie Mellon Univ., 359 F.3d 292, 294 (3d Cir. 2004); 21 Williston on Contracts § 57:19 (Richard A. Lord ed., 4th ed. 2001).
Here, the parties agree that the relevant state contract law is that of Pennsylvania. Under Pennsylvania law, the general rule is that “only parties to an arbitration agreement are subject to arbitration,” Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 1271 (Pa. Super. Ct. 2004), but in some situations, “equitable estoppel [may] bind non-signatories to an arbitration clause when the non-signatory knowingly exploits the agreement containing the arbitration clause despite having never signed the agreement,” Washburn v. N. Health Facilities, Inc., 121 A.3d 1008, 1015 (Pa. Super. Ct. 2015) (citing DuPont, 269 F.3d at 199). Put differently, where a non-signatory “embraces the agreement and directly benefits from it,” Bouriez, 359 F.3d at 295, it may not “then turn[] its back on the portions of the contract, such as an arbitration clause, that it finds distasteful,” DuPont, 269 F.3d at 200. See generally Griswold, 762 F.3d at 272 n.6 (observing that consistent with the Supreme Court‘s decision in Arthur Andersen, “we may rely on our prior decisions so
On the other hand, equitable estoppel is inapposite where “there is no evidence that the [nonparties] availed [themselves] of the . . . agreement or received any benefit under that agreement.” Washburn, 121 A.3d at 1015. Where enforcement is sought against non-signatories, “[a] dispute that arises under one agreement may be litigated notwithstanding a mandatory arbitration clause in a second agreement,” even where the dispute implicates “two agreements [that] are closely intertwined.”6 Bouriez, 359 F.3d at 295 (citation omitted).
Applying this precedent, we agree with the District Court that Uber‘s equitable-estoppel argument is meritless. Aside from its unreviewable standing-related arguments, Uber argues only that “to prove the discrimination they allege, Plaintiffs must prove what Uber offers,” which they cannot do “without the Terms of Use because Uber makes its services available only because of, and pursuant to, the Terms of Use.” Appellant‘s Br. 41. But that strained argument is belied by the complaint, which describes Uber‘s “on-demand transportation service” without any reference to the Terms of Use, A44 (capitalization altered), and alleges that Plaintiffs have not downloaded Uber‘s app, used its service, or otherwise availed themselves of any aspect of Uber‘s service agreement. Indeed, the crux of their claim is that Uber‘s unlawful discrimination has prevented them from partaking in or benefiting from that service agreement in the first place. Thus, as the Ninth Circuit put it in rejecting Uber‘s estoppel argument in a companion case, where “[p]laintiffs do not rely on Uber‘s Terms and Conditions,” “[n]one of [those terms] is mentioned in the . . . complaint, and the only [term] Uber has mentioned is the arbitration clause,” it‘s apparent that “Plaintiffs’ case arises entirely under the ADA.” Namisnak v. Uber Techs., Inc., 971 F.3d 1088, 1095 (9th Cir. 2020).
In sum, because there is no evidence that Plaintiffs “availed [themselves]” of Uber‘s service agreement prior to or in the course of litigation or “received any benefit under that agreement,” Washburn, 121 A.3d at 1015, they are not equitably estopped from rejecting its arbitration clause.
IV. Conclusion
For the foregoing reasons, we will affirm the District Court‘s order denying the motion to compel arbitration.