Sherwood v. MARQUETTE TRANSPORTATION COMPANY, LLC

Nov 23, 2009
09-2045
Versions:587 F.3d 841
2009 U.S. App. LEXIS 25581
2009 WL 4016607
EASTERBROOK, Chief Judge.

Michael Sherwood filed this suit under the Jones Act, 46 U.S.C. §§ 30101-06, and general maritime law, alleging that he suffered an injury while working as a deekhandjcolleetively Bluegrass Marine, Sherwood’s employer), whose vessеls ply the Mississippi River, asked the judge to stay the suit in favor of arbitration. The Federal Arbitration Act does not apply because Sherwood was a seaman, and “nothing [in the Act] shall apply to contracts of employment of seamen” and some other workers. 9 U.S.C. § 1. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (discussing § 1). But Bluegrass Marine did not rely оn the federal Act. Instead it invoked a clause of Sherwood’s employment contract providing that all disputes will be arbitrated under the Illinois Uniform Arbitration Act, 710 ILCS 5/1 to 5/23.

Sherwood replied with a number of arguments that are difficult to square with the law of this circuit, such as a contention that arbitration clauses in fоrm contracts are inadequate to waive the right to trial by jury. See Carbajal v. H & R Block Tax Services, Inc., 372 F.3d 903 (7th Cir.2004) (rejecting that position). The district court nonetheless denied the motion to stay. Bypassing all issues that the parties had briefed, the judge concluded that the Federal Arbitration Act preempts any state law that concerns аrbitration. If the federal Act applies, then arbitration must proceed under its terms; if the federal Act does not apply, because of § 1 or аny other clause, then arbitration is forbidden. Any other outcome, the judge wrote, would interfere with the federal Act’s objectives. 2009 U.S. Dist. Lexis 26934 (S.D.Ill.Mar. 31, 2009).

Perhaps because the issue had not been briefed, the district court did not consider a third possibility: When a con tract is covered by the federal Act, states аre forbidden to interfere with the parties’ agreement ‍​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌‌‌​‌‌​​​‌​‌​​​‌​​‌​‌‌‍(save on a ground, such as the need for a signed writing, applicable to any contraсt, see 9 U.S.C. § 2), but that, when a contract is not covered by the federal Act, states are free to favor, disfavor, or even ban arbitration. At least twо courts of appeals have reached this conclusion, rejecting the argument that exceptions to the federal Act preempt state law. See Palcko v. Airborne Express, Inc., 372 F.3d 588, 595-96 (3d Cir.2004); Davis v. EGL Eagle Global Logistics, L.P., 243 Fed.Appx. 39, 44 (5th Cir.2007) (nonprecedential disposition). And this court has held that the limited scope of a federal enactment does not preempt state legislation on subjects that Congress has chosen not to regulate. See, e.g., Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496 (7th Cir.1989); Joliet v. New West, L.P., 562 F.3d 830 (7th Cir.2009). This means, we concluded in Omni Tech Corp. v. MFC Solutions Sales, LLC, 432 F.3d 797 (7th Cir.2005), that provisions for alternative dispute resolution mаy be enforced as contracts under state law, even if the provisions are outside the Federal Arbitration Act’s scope. See also Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1406-07, 170 L.Ed.2d 254 (2008) (agreements that differ from the federal Act’s rules may be enforced as contracts, though not under the Act’s procedures). But the district court, acting sua sponte, appears to have been unaware of these decisions.

Bluegrass Marine appealed, relying on 9 U.S.C. § 16(a)(1)(A), whiсh authorizes interlocutory review of any order “refusing a stay of any action under section 3 of this title”. There are two problems: First, § 16 is part of the Aсt and so, under the language of § 1, does not apply to any employment contract involving a seaman. See Pryner v. Tractor Supply Co., 109 F.3d 354, 360 (7th Cir.1997). Second, § 3 also is inappliсable, and Bluegrass Marine’s motion for a stay did not rely on it. Instead Bluegrass Marine founded its motion on the parties’ contract and Illinois law. Neither § 3 nor § 16 ‍​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌‌‌​‌‌​​​‌​‌​​​‌​​‌​‌‌‍applies to a motion to stay litigation when state rather than federal law is the source of the obligation to arbitrate. Consequently we lаck appellate jurisdiction, for Sherwood’s action is ongoing in the district court.

According to Bluegrass Marine, Palcko holds that § 16 supports an interlocutory appeal even when § 1 excludes a particular contract from the federal Act’s scope. Actually, however, Palcko stands for the more modest proposition thаt, when there is a bona fide dispute about whether a particular contract is within the federal Act’s scope, § 16 applies. Accord, Brown v. Nabors Offshore Corp., 339 F.3d 391 (5th Cir.2003). We took the same approach in Omni Tech. When the parties disagree about the scope of the Federal Arbitration Act’s coverage, the motion (by the proponent of arbitration) seeking a stay is one “under section 3 of this title.” The fact that the proponent makes a bad argument does not put the motion outside § 3. See Arthur Andersen LLP v. Carlisle, — U.S. —, 129 S.Ct. 1896, 1900-01, 173 L.Ed.2d 832 (2009). But Bluegrаss Marine did not seek a stay “under section 3 of this title”; it has never contended that the Federal Arbitration Act applies. Section 16 of the Act therеfore cannot provide jurisdiction. See also Bombardier Corp. v. National Railroad Passenger Corp., 333 F.3d 250 (D.C.Cir.2003) (§ 16 does not permit interlocutory review of all decisions adverse to a party that wants tо arbitrate; review is limited to the situations enumerated in § 16(a)).

This leads Bluegrass Marine to invoke ‍​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌‌‌​‌‌​​​‌​‌​​​‌​​‌​‌‌‍the collateral-order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The last decision treating the denial of a stay as an appealable collateral order came in 1988, and there is a good reason for reсent silence. The Supreme Court has held that a district judge’s refusal to stay, dismiss, or transfer a case under a forum-selection clause is not apрealable as a collateral order, because the issue can be resolved on appeal from the final decision. See Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989). See also Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (refusal to stay or dismiss a suit under a settlement contract is not appeal-able as a collateral order); Van Cauwenberghe v. Biard, 486 U.S. 517, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (refusal to stay, dismiss, or transfer a suit in response to an assertion of forum non conveniens is not appealable as a collateral order). An arbitration agreement is a specialized forum-selection clause. See Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). It follows that a district judge’s decision to proceed with the suit is not a “final decision” immediatеly appealable under 28 U.S.C. § 1291. See Wabtec Corp. v. Faiveley Transport Malmo AB, 525 F.3d 135, 138 (2d Cir.2008).

Bluegrass Marine also maintains that the district court’s order is appealable under 28 U.S.C. § 1292 as the denial of an injunction. An old line of cases supports that position, but “old” is ‍​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌‌‌​‌‌​​​‌​‌​​​‌​​‌​‌‌‍a vital qualifier. An equation between denials of stays and injunctions reflected the Enelow-Ettelson doctrine, which was overruled in Gulf-stream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). Doubtless it is possible for a district judge’s рrocedural order to be treated as the denial of an injunction when it postpones resolution of the dispute and causes the same sort of irreparable injury as the denial of an interlocutory injunction would do. Gulfstream Aerospace itself said as much. Perhaps this is what McNamara v. Yellow Transportation, Inc., 570 F.3d 950 (8th Cir.2009), meant when stating that a refusal to stay a suit may be appealed under § 1292(a)(1). But Sherwood’s suit seeks damages, not an injunction; thus the choice between resolving the dispute in court or before an arbitrator could not grant or deny an injunction.

If the eighth circuit believes that every anti-arbitration order is appealable as an injunction, it is at odds with this circuit and many others. See Briggs & Stratton Corp. v. Industrial Workers Union, 36 F.3d 712, 714 (7th Cir.1994) (disagreeing with Nordin v. Nutri/System, Inc., 897 F.2d 339 (8th Cir.1990), the sole decision on which McNamara relied); Central States Pension Fund v. Central Cartage Co., 84 F.3d 988 (7th Cir.1996). Section 16 supplied apрellate jurisdiction in McNamara; that court’s invocation of § 1292(a)(1) was unnecessary as well as imprudent, for the reasons Briggs & Stratton develops.

Bluegrass Marine seems to think that any judicial order that could increase the cost of litigation — which will occur if the district court holds a trial and we later set aside the judgment and remand with instructions to arbitrate — must be treated ‍​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​‌​‌​​‌‌‌​‌‌​​​‌​‌​​​‌​​‌​‌‌‍as an injunction because needless costs of litigation are “irreparable injury.” On that understanding, every order denying a motion for summary judgment, or requiring costly discovery, would be immediately appealablе as an injunction. That is not the way § 1292 works. An injunction is a form of relief on the merits; orders that increase the expense of litigation are not injunctions. See Moglia v. Pacific Employers Insurance Co., 547 F.3d 835 (7th Cir.2008). What’s more, the expense of litigation is not “irreparable injury.” See Petroleum Exploration, Inc. v. Public Service Commission, 304 U.S. 209, 222, 58 S.Ct. 834, 82 L.Ed. 1294 (1938); FTC v. Standard Oil Co., 449 U.S. 232, 244, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980); Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974). This proposition is so fundamental to our legal system that we have labeled frivоlous the sort of argument Bluegrass Marine presents. See PaineWebber Inc. v. Farnam, 843 F.2d 1050 (7th Cir.1988).

The district court may be able to avert a good deal of wasted motion by taking a fresh lоok at the preemption question. But if the court stands pat and resolves the suit on the merits, Bluegrass Marine will be entitled to contend on appeal from the final decision that the dispute should have been arbitrated instead. The appeal is dismissed for lack of jurisdiction.