Dist. No. 1 v. Liberty Mar. Corp., 19-7009

• Decision Date: 25 May 2021
• Docket Number: No. 19-7009,19-7009
• Parties: DISTRICT NO. 1, PACIFIC COAST DISTRICT, MARINE ENGINEERS’ BENEFICIAL ASSOCIATION, AFL-CIO, Appellant v. LIBERTY MARITIME CORPORATION, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

998 F.3d 449

DISTRICT NO. 1, PACIFIC COAST DISTRICT, MARINE ENGINEERS’ BENEFICIAL ASSOCIATION, AFL-CIO, Appellant

v.LIBERTY MARITIME CORPORATION, Appellee

No. 19-7009

United States Court of Appeals, District of Columbia Circuit.

Argued December 10, 2019

Decided May 25, 2021

Mark J. Murphy argued the cause for appellant. With him on the briefs was Matthew D. Watts.

Andrew C. Nichols argued the cause for appellee. With him on the brief were William G. Miossi, Washington, DC, and Paul N. Harold. Steffen N. Johnson, Washington, DC, entered an appearance.

Before: Srinivasan, Chief Judge, and Rogers and Pillard, Circuit Judges.

Srinivasan, Chief Judge:

This case stems from a number of labor disputes between Liberty Maritime Corporation and a maritime labor union that represents certain Liberty employees. The parties’ collective bargaining agreement provides for resolution of disputes under oversight of an arbitrator appointed by mutual agreement. The union contends that Liberty violated the agreement by unilaterally selecting an arbitrator. Liberty maintains that the arbitrator was validly appointed.

The central issue we confront is who decides whether the arbitrator was validly (i.e., mutually rather than unilaterally) appointed: the challenged arbitrator himself, or instead a court? The district court concluded that the collective bargaining agreement assigns to the arbitrator himself the authority to determine the validity of his own appointment. We disagree and understand the agreement to leave that issue for resolution by a court. We thus vacate the district court's judgment and remand for the court to determine whether the challenged arbitrator was validly appointed.

I.

A.

District No. 1, Pacific Coast District, Marine Engineers’ Beneficial Association, AFL-CIO, whom we will refer to as MEBA, is a union that has long represented deck and marine engineering officers employed by Liberty Maritime Corporation. MEBA and Liberty are parties to a decades-old collective bargaining agreement.

Section 2 of the agreement, entitled "Grievance Procedure and Arbitration," states that "[a]ll disputes relating to the interpretation or performance of this Agreement shall be determined in accordance with the provisions in this Section." Agreement of District No. 1, Pacific Coast District, MEBA (AFL-CIO) and Liberty Maritime Corporation ("Agreement") § 2(a), J.A. 45–46. Those provisions call for establishment of a Licensed Personnel Board charged with "resolv[ing] any grievance" either party may have. Agreement § 2(b), J.A. 46. The Board is comprised of four representatives: two chosen by MEBA and two chosen by Liberty.

An arbitrator serves as the chair of the Board and presides over its meetings. If the Board resolves a matter by majority vote, that decision becomes final. But in the event the Board cannot reach a majority resolution, the arbitrator serves as the tiebreaker. A decision by the arbitrator is final and binding on both parties. Agreement §§ 2(b)–(c), J.A. 46–47.

The agreement specifies that the "Arbitrator will be appointed by mutual agreement." Agreement § 2(d), J.A. 47. The agreed-upon arbitrator serves "for a one (1) year period, renewable for one (1) year periods by mutual consent." Id. In the event of the arbitrator's termination during the one-year term, "the parties will agree within fifteen (15) days upon a successor." Id. If the parties cannot agree on a successor, "the parties shall request an agreed upon agency to designate five (5) names from among which each party shall have the right to strike two (2), and the Agency shall designate a successor who shall serve for the balance of the contract year." Id . The term "agreed upon agency," according to a supplemental memorandum of understanding between the parties, is "intended to mean either the United States Secretary of Labor or the American Arbitration Association." J.A. 150.

B.

Despite the existence of the procedures for resolution of grievances set forth in Section 2 of the collective bargaining agreement, the parties long refrained from invoking those procedures when a grievance arose. Instead, when either party raised a grievance, the parties would request a list of qualified arbitrators from the American Arbitration Association (AAA). The parties would then take turns striking names from the list and choose the last remaining person as the arbitrator.

In April 2018, however, Liberty informed MEBA of its interest in invoking the Section 2 procedures to resolve a number of outstanding grievances. MEBA responded that it did "not believe there is any reason to resurrect the licensed personnel board procedures," noting that the parties had "never followed these procedures." J.A. 314. MEBA instead proposed to select an arbitrator "from a panel of arbitrators issued by AAA." Id.

On June 12, 2018, Liberty advised MEBA that it was invoking the Section 2 procedures and identified the two Liberty representatives it was appointing to the Licensed Personnel Board. Liberty also called a meeting of the Board to take place on June 18, at which, Liberty stated, the first order of business would be to choose the arbitrator. MEBA again objected to Liberty's invocation of the Section 2 procedures. The parties exchanged a flurry of emails over the course of a week, culminating in MEBA's providing the names of its two Board representatives.

Although MEBA ultimately agreed to participate in the Section 2 process, it objected to a revised meeting date (June 26) chosen by Liberty because MEBA's attorney would be unable to attend. Liberty declined to select another date because, in its view, the parties’ attorneys need not join the meeting. MEBA's Board representatives, though, refused to attend the meeting without the participation of counsel. Undeterred, Liberty's two Board representatives met on June 26 and proceeded to appoint an arbitrator.

MEBA then brought this action in the district court. MEBA challenged the arbitrator's appointment on the ground that he had been unilaterally rather than mutually appointed. MEBA's complaint seeks both declaratory and injunctive relief: a declaration stating that Liberty could not unilaterally appoint an arbitrator consistent with Section 2 of the collective bargaining agreement, and an injunction barring Liberty from participating in arbitration proceedings overseen by the challenged arbitrator. Liberty filed a motion to dismiss MEBA's complaint, arguing that the arbitrator had been validly appointed.

The district court treated Liberty's motion to dismiss as a motion to compel arbitration, reasoning that both parties plainly intended to arbitrate their underlying disputes. Dist. No. 1, Pac. Coast Dist., Marine Eng'rs’ Beneficial Ass'n v. Liberty Mar. Corp. , No. 18-1618, 2019 WL 224291, at *3 (D.D.C. Jan. 15, 2019). The court then addressed whether the parties’ dispute over the validity of the arbitrator's appointment should be resolved by the challenged arbitrator himself or instead by the court. The court read the collective bargaining agreement to assign that issue for resolution by the arbitrator. The court thus granted Liberty's motion to dismiss and referred the parties to arbitration. Id. at *5–6. MEBA now appeals.

II.

While Liberty does not contest our jurisdiction over MEBA's appeal, we must assure ourselves of our appellate jurisdiction. We generally possess jurisdiction over appeals from final decisions of the district court. 28 U.S.C. § 1291. Here, the district court purported to dismiss MEBA's complaint "without prejudice." Liberty Mar. Corp. , 2019 WL 224291, at *6. The district court's "without prejudice" dismissal raises the question of whether the court's order was final and appealable. We conclude that it was.

In Ciralsky v. CIA , 355 F.3d 661, 666 (D.C. Cir. 2004), we explained that there is a distinction between a district court's dismissal of a complaint without prejudice and a district court's dismissal of an action without prejudice. When a court dismisses a complaint without prejudice, the plaintiff generally can "amend his pleading and continue the litigation." Id. (internal quotation marks omitted). But the "dismissal of an action—whether with or without prejudice—is final and appealable." Id. That is because, when a district court dismisses an action, it terminates the case. Id. at 667. Even if the dismissal of the action is denominated "without prejudice," such that claim preclusion principles would not bar the filing of a new action, "that does not change the fact that, in the absence of such an affirmative act" of initiating a new action, the initial "case is at an end." Id.

As we recognized in Ciralsky , though, "it is not always clear whether a district court intended its order to dismiss the action or merely the complaint." Id. To answer that question, the court in Ciralsky examined three sources: (i) the language used by the district court in effecting its dismissal, (ii) the language of the dismissal motion granted by the court, and (iii) the course of the litigation. See id. at 667–68.

Here, while the district concluded its opinion by stating that it was dismissing the "complaint," the context makes evident that the court in fact sought to dismiss the action in the sense of bringing the case to an end. The same was true in Ciralsky : there, too, the district court "spoke several times of dismissing the complaint," but the circumstances indicated that the court believed it was dismissing the action, i.e., ending the case. Id. at 667. The three sources we examined in Ciralsky in reaching that conclusion all likewise point to a dismissal of the action here.

First , the district court concluded its memorandum opinion granting Liberty's dismissal motion by stating that, "because there are no issues left for this court to resolve, I easily conclude that it is appropriate to dismiss this case in its entirety." Liberty Mar. Corp. , 2019 WL 224291, at *6 (internal quotation marks omitted). That language bespeaks a final...