368 F.3d 1109 (9th Cir. 2004), 02-56522, Luong v. Circuit City Stores, Inc.

Docket Nº02-56522.
Citation368 F.3d 1109
Party NameVernon Vu LUONG, Petitioner-Appellant, v. CIRCUIT CITY STORES, INC., Respondent-Appellee.
Case DateMay 25, 2004
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1109

368 F.3d 1109 (9th Cir. 2004)

Vernon Vu LUONG, Petitioner-Appellant,

v.

CIRCUIT CITY STORES, INC., Respondent-Appellee.

No. 02-56522.

United States Court of Appeals, Ninth Circuit

May 25, 2004

Argued and Submitted July 7, 2003.

Page 1110

Mai D. Wells, Infinity Law Group, Anaheim, CA, for the petitioner-appellant.

Rex Darrell Berry, Livingston & Mattesich, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-02-00593-GLT.

Before: KOZINSKI, FERNANDEZ, and RYMER, Circuit Judges.

RYMER, Circuit Judge.

Vernon Vu Luong appeals dismissal of his petition to vacate an arbitration award in favor of Circuit City Stores, Inc. for lack of subject matter jurisdiction. His petition claims that the arbitrator manifestly disregarded Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), in ruling that Circuit City did not violate his rights under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213(ADA). He argues that the allegation of manifest disregard of federal law raises a federal question. We agree that it does, and that the district court had subject matter jurisdiction over Luong's petition. However, the petition fails because the arbitrator did not manifestly disregard Toyota. Accordingly, we affirm.

I

On August 24, 2000, Luong brought an action for discrimination in violation of the ADA against Circuit City in federal district court. Circuit City moved to compel arbitration based on an arbitration agreement. The district court granted the petition to compel and dismissed the action.

The dispute was arbitrated. The arbitrator found that Luong was neither disabled nor regarded as disabled under Toyota, thus Circuit City did not violate the ADA.

Luong then filed a petition to vacate the arbitration award pursuant to Section 10 of the Federal Arbitration Act, 9 U.S.C. § 10(FAA).1 This petition premised

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federal jurisdiction only on the FAA, which we have held does not confer subject matter jurisdiction. Garrett v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 882, 883-84 (9th Cir. 1993). Luong amended his petition to allege diversity of citizenship with more than $75,000 in controversy, 28 U.S.C. § 1332, and a federal question arising out of the arbitrator's manifest disregard of federal law, 28 U.S.C. § 1331. The petition asserts that the arbitrator "ignored federal law as well as refused to correctly apply federal law," and attaches a copy of the arbitrator's decision as an exhibit.

Circuit City moved to dismiss Luong's petition for lack of subject matter jurisdiction, which the district court granted. This timely appeal followed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.2

II

It is well settled that federal courts must have an independent basis for federal jurisdiction to hear claims under the FAA, see, e.g., Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n. 32, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Southland Corp. v. Keating, 465 U.S. 1, 15 n. 9, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), and that 9 U.S.C. § 10 does not provide it, see Garrett, 7 F.3d at 884.3 Other circuits hold the same view. See, e.g., Kasap, 166 F.3d at 1247; Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997); Minor, 94 F.3d at 1105; Ford v. Hamilton Invs., Inc., 29 F.3d 255, 257-58 (6th Cir. 1994); Harry Hoffman Printing, Inc. v. Graphic Communications, Local 261, 912 F.2d 608, 611 (2d Cir. 1990). Nor does § 10 create federal question jurisdiction even when the underlying arbitration involves a federal question. See, e.g., Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 27 (2d Cir. 2000), cert. denied, 531 U.S. 1075, 121 S.Ct. 770, 148 L.Ed.2d 669 (2001); Kasap, 166 F.3d at 1247; Minor, 94 F.3d at 1106; Ford, 29 F.3d at 257-58. In sum, a federal question for purposes of subject matter jurisdiction must be presented in a well-pleaded petition.

Luong argues that federal question jurisdiction exists over his petition to vacate because it alleges that the arbitrator's award was rendered in manifest disregard of federal law-- Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). He invites us to follow Greenberg, where the Second Circuit held that when a petition to vacate "complains principally and in good faith that the award was rendered in manifest disregard of federal law, a substantial federal question is presented and the federal courts

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