District N O. 1, Pacific Coast District, Marine Engineers ’ Beneficial Association ,… v. Liberty Maritime Corporation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2019 Decided May 25, 2021
No. 19-7009
DISTRICT N O. 1, P ACIFIC C OAST DISTRICT, M ARINE
ENGINEERS ’ B ENEFICIAL ASSOCIATION , AFL-CIO,
APPELLANT
v.
LIBERTY M ARITIME C ORPORATION ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01618)
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 and Paul N. Harold.
Steffen N. Johnson entered an appearance.
Before: S RINIVASAN, Chief Judge, and R OGERS and
P ILLARD, Circuit Judges.
Opinion for the court filed by Chief Judge S RINIVASAN.

-- 1 of 26 --

2
S RINIVASAN , 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

-- 2 of 26 --

3
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.

-- 3 of 26 --

4
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

-- 4 of 26 --

5
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.

-- 5 of 26 --

6
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.

-- 6 of 26 --

7
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
dismissal of an action—i.e., an end of the case—not merely a
dismissal of the complaint. There is little doubt “that the
district court thought the order had terminated the action.”
Ciralsky, 355 F.3d at 667. After all, the court said that “there
are no issues left . . . to resolve” and that it was “appropriate to
dismiss this case in its entirety.” Liberty Mar. Corp., 2019 WL
224291, at *6 (internal quotation marks omitted).
Second, although Liberty’s motion referenced dismissal of
the complaint, the motion in substance sought dismissal of the
action. Liberty’s chief argument was that the collective
bargaining agreement gives the arbitrator, not a court, the
authority to determine the validity of his own appointment. As
a result, Liberty contended, “‘all of the claims are subject to
resolution by the arbitrator,’ and the Court should dismiss
them.” Defendant’s Mot. to Dismiss at 2, J.A. 439 (citing W &
T Travel Servs., LLC v. Priority One Servs., Inc., 69 F. Supp.

-- 7 of 26 --

8
3d 158, 174 (D.D.C. 2014)). Liberty noted parenthetically that,
in the cited decision, W & T Travel Servs., the court had
“dismisss[ed] a suit,” i.e., an action. Id. And Liberty’s
submission that MEBA’s claims should be resolved in
arbitration proceedings, not in the court, necessarily
contemplated bringing the action before the court to an end.
Liberty correspondingly sought a dismissal “with prejudice.”
Id. at 14, J.A. 451.
Third, the course of the litigation confirms that, in granting
Liberty’s dismissal motion, the district court effected a
dismissal of the action, not just the complaint. When the court
granted Liberty’s motion, the court in both its opinion and its
order expressly stated that “the parties are referred to
arbitration.” Liberty Mar. Corp., 2019 WL 224291, at *6. That
resolution terminated the litigation before the court, shifting the
proceedings to an arbitral forum. Cf. Green Tree Fin. Corp. v.
Randolph, 531 U.S. 79, 82 (2000) (order compelling arbitration
is a final, appealable decision for purposes of the Federal
Arbitration Act).
For those reasons, we hold that the district court’s grant of
dismissal amounted to a final decision as to the action, not just
the complaint. We thus possess appellate jurisdiction to
consider MEBA’s appeal.
III.
The underlying question in MEBA’s action is whether the
arbitrator selected by Liberty’s designated Board members was
“appointed by mutual agreement” in accordance with the terms
of the parties’ collective bargaining agreement. The issue we
face on appeal is who decides that underlying question: does
the challenged arbitrator himself decide whether he was validly

-- 8 of 26 --

9
appointed by mutual agreement, or is that instead a decision for
a court?
The parties agree that the issue of who decides is governed
by the parties’ intent as manifested in their collective
bargaining agreement. Liberty contends, and the district court
agreed, that the agreement calls for the arbitrator himself to
resolve whether he had been appointed by mutual agreement.
MEBA argues that the parties left that decision to a court. We
agree with MEBA.
As an initial matter, MEBA contends that the district court
erred by treating Liberty’s motion to dismiss as a motion to
compel arbitration. That treatment, in MEBA’s view, resulted
in the district court’s applying an unduly lenient standard when
granting Liberty’s motion. We have no need to resolve that
issue: even assuming the district court permissibly converted
the motion to dismiss into a motion to compel arbitration, we
conclude that the court should not have compelled arbitration.
Rather, the question whether the arbitrator was validly
appointed by mutual agreement should be answered by a court,
not by the contested arbitrator himself.
A motion to compel arbitration is decided on a summary
judgment standard. See Aliron Int’l, Inc. v. Cherokee Nation
Indus., Inc., 531 F.3d 863, 865 (D.C. Cir. 2008); Fed. R. Civ.
P. 56(c). The issue is “whether or not there had been a meeting
of the minds on the agreement to arbitrate” the dispute at hand.
Aliron Int’l, 531 F.3d at 865 (internal quotation marks omitted).
There was no such meeting of the minds here to empower the
challenged arbitrator himself to decide whether he was validly
appointed by mutual agreement.
Our analysis proceeds in two steps. First, we assess
whether the dispute over the arbitrator’s appointment involves

-- 9 of 26 --

10
the kind of question that is presumptively for judicial rather
than arbitral resolution. We answer that question yes. Second,
we assess whether the parties’ collective bargaining agreement
overcomes that presumption through a clear and unmistakable
assignment of power to the challenged arbitrator himself to
decide the validity of his own appointment. We find no clear
and unmistakable provision to that effect in the agreement,
meaning that the matter has been left for resolution by a court.
A.
The Supreme Court has explained that “arbitration is a
matter of contract, and courts must enforce arbitration contracts
according to their terms.” Henry Schein, Inc. v. Archer &
White Sales, Inc., 139 S. Ct. 524, 529 (2019). The parties to an
arbitration agreement “may agree to have an arbitrator decide
not only the merits of a particular dispute but also gateway
questions of arbitrability, such as whether the parties have
agreed to arbitrate or whether their agreement covers a
particular controversy.” Id. (internal quotation marks omitted).
The gateway issue in this case is whether the arbitrator was
validly appointed by mutual agreement.
We note at the outset that, in assessing whether that
gateway issue is for a court or instead for the contested
arbitrator himself to resolve, we assume that the issue is one
that parties could “agree to have an arbitrator decide” if they so
intend. Id. That may not always be the case. The Supreme
Court has observed, for instance, that “before referring a
dispute to an arbitrator, the court determines whether a valid
arbitration agreement exists.” Id. at 530; see New Prime Inc.
v. Oliveira, 139 S. Ct. 532, 538 (2019); Rent-A-Center, West,
Inc. v. Jackson, 561 U.S. 63, 71 (2010). Insofar as the threshold
question “whether a valid arbitration agreement exists” then is
necessarily for “the court [to] determine[],” Henry Schein, 139

-- 10 of 26 --

11
S. Ct. at 530—such that it cannot be delegated to an
arbitrator—MEBA makes no argument that the gateway issue
in this case is of that type. We thus assume that parties could
enable a contested arbitrator herself to decide whether she was
validly appointed by mutual agreement, and we proceed to
assess whether the parties did so here.
1.
The Supreme “Court has consistently held that parties may
delegate threshold arbitrability questions to the arbitrator, so
long as the parties’ agreement does so by ‘clear and
unmistakable’ evidence.” Id. (quoting First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). That is,
the “question whether the parties have submitted a particular
dispute to arbitration, i.e., the question of arbitrability, is an
issue for judicial determination unless the parties clearly and
unmistakably provide otherwise.” Howsam v. Dean Witter
Reynolds, Inc., 537 U.S. 79, 83 (2002) (formatting modified)
(internal quotation marks omitted). A “question of
arbitrability” then is presumptively for a court to decide, unless
the parties clearly and unmistakably assign it to the arbitrator.
The Supreme Court has explained, though, that the
“clearly and unmistakably” standard does not govern every
gateway issue that could be characterized as a “question of
arbitrability.” “Linguistically speaking, one might call any
potentially dispositive gateway question a ‘question of
arbitrability,’ for its answer will determine whether the
underlying controversy will proceed to arbitration on the
merits.” Id. But some gateway issues, the Court has held, “are
presumptively for the arbitrator, not for the judge.” Id. at 85.
So how do we determine whether a given gateway issue is
a “question of arbitrability” such that it is presumptively for a

-- 11 of 26 --

12
court to decide (absent a clear and unmistakable provision to
the contrary), or instead falls outside that category such that it
is presumptively for the arbitrator to decide? The answer, the
Supreme Court has instructed, turns on whether the parties
would likely have expected a court or instead an arbitrator to
decide the issue. See id. at 83–85.
In particular, a gateway issue will qualify as a “question of
arbitrability”—and thus presumptively decided by a court—
“where contracting parties would likely have expected a court
to have decided the gateway matter, where they are not likely
to have thought that they had agreed that an arbitrator would
do so, and, consequently, where reference of the gateway
dispute to the court avoids the risk of forcing parties to arbitrate
a matter that they may well not have agreed to arbitrate.” Id.
at 83–84. Examples of such questions of arbitrability include
a “dispute about whether the parties are bound by a given
arbitration clause” and “a disagreement about whether an
arbitration clause in a concededly binding contract applies to a
particular type of controversy.” Id. at 84; see Henry Schein,
139 S. Ct. at 529; First Options, 514 U.S. at 943.
On the other hand, the Supreme “Court has found the
phrase ‘question of arbitrability’ not applicable in other kinds
of general circumstances where parties would likely expect that
an arbitrator would decide the gateway matter.” Howsam, 537
U.S. at 84. For instance, “procedural questions which grow out
of the dispute and bear on its final disposition are
presumptively not for the judge, but for an arbitrator, to
decide.” Id. (internal quotation marks omitted). That includes
questions about whether “prerequisites such as time limits,
notice, laches, estoppel, and other conditions precedent to an
obligation to arbitrate have been met.” Id. at 85 (internal
quotation marks and emphasis omitted). Those sorts of
threshold procedural issues fall “within the class of gateway

-- 12 of 26 --

13
procedural disputes that do not present what [the Supreme
Court’s] cases have called ‘questions of arbitrability,’” such
that “the strong pro-court presumption as to the parties’ likely
intent does not apply.” Id. at 85–86.
2.
Where, then, does that leave us with respect to the gateway
issue in this case—viz., whether the arbitrator was validly
appointed by mutual agreement or instead invalidly selected by
unilateral action? Does that gateway issue qualify as a question
of arbitrability, presumptively decided by a court? Or is it
instead the kind of gateway issue that is presumptively decided
by an arbitrator—here, the disputed arbitrator himself? The
answer, as explained, turns on whether the issue is one that
parties likely would have expected is for a court to decide or
instead likely would have expected is for the arbitrator to
decide. We believe the former.
Courts enforce arbitral awards “[b]ecause the parties have
contracted to have disputes settled by an arbitrator chosen by
them rather than by a judge.” United Paperworkers Int’l
Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37 (1987)
(emphasis added). Arbitration thus essentially presupposes a
consensually chosen arbitrator. In the event of a disagreement
between the parties over whether an arbitrator was
consensually chosen in accordance with the terms of their
contract, it is unlikely that the parties would have expected
resolution of the dispute by the disputed arbitrator herself.
Consider the respective positions of parties when there is
a dispute about whether an arbitrator has been mutually agreed
upon. One party believes the arbitrator has been validly
appointed by joint affirmation. The other party believes the
arbitrator has been impermissibly foisted upon it by the

-- 13 of 26 --

14
opposing side acting alone. In that context, why would the
parties expect that the disputed arbitrator herself would resolve
the legitimacy of her own appointment, as opposed to a neutral
third party (a court) deciding the matter? Neither party
presumably would want to risk being put in a position in which
an arbitrator whom it believes has been unilaterally imposed
upon it by the opposing party is nonetheless given power to
decide for herself whether she can act as the final arbiter of
disputes between them.
Rather, this is the sort of “circumstance where contracting
parties would likely have expected a court” to “decide[] the
gateway matter, where they are not likely to have thought that
they had agreed that [the challenged] arbitrator [herself] would
do so.” Howsam, 537 U.S. at 83. At the least, it is appropriate
to presume that parties would not intend for the challenged
arbitrator herself to decide the validity of her own appointment
absent a clear and unmistakable indication that the parties
intended to give her that authority.
Imagine what would happen in a situation involving not
just one disputed arbitrator but two, with each side asserting
that its preferred arbitrator was validly appointed by mutual
agreement but that the opposing side’s preferred arbitrator was
invalidly appointed unilaterally. If the validity of an
arbitrator’s appointment were deemed an issue for the
arbitrator herself to resolve, which of the two disputed
arbitrators would decide the matter? If they each deemed
themselves validly appointed, how would the stalemate get
resolved? The more sensible course, and the one more in
keeping with parties’ likely expectations, is to presume—
absent a clear and unmistakable indication to the contrary—
that the gateway question of whether an arbitrator has been
validly appointed by mutual agreement is for a court to decide,
not for the challenged arbitrator herself.

-- 14 of 26 --

15
That conclusion is reinforced by the understanding that
courts have presumptive responsibility to decide whether a
“particular type of controversy” lies within an arbitrator’s
authority. Id. at 84; see Green Tree Financial Corp. v. Bazzle,
539 U.S. 444, 452 (2003) (plurality opinion); AT & T
Technologies, Inc. v. Communications Workers of Am., 475
U.S. 643, 651–52 (1986). If courts are given presumed power
to decide whether a particular matter falls within an arbitrator’s
authority because “contracting parties would likely have
expected a court to have decided” the question, Howsam, 537
U.S. at 83, courts should also be presumed to decide whether
the arbitrator who would exercise that authority (potentially
over many matters) was validly appointed in the first place.
While the Supreme Court has not specifically addressed
that issue, a group of three Justices considered it in Green Tree
Financial Corp. v. Bazzle, and their resolution accords with
ours. The issue in Bazzle was whether the parties’ arbitration
agreement allowed for class arbitration. The lead plaintiffs and
the defendant company had agreed on an arbitrator to resolve
their dispute, see 539 U.S. at 449 (plurality opinion), and the
question was whether that agreed-upon arbitrator could also
arbitrate the claims of the entire plaintiff class. The Justices
making up the majority viewed that issue to concern “what kind
of arbitration proceeding the parties agreed to.” Id. at 452; see
id. at 454–55 (Stevens, J., concurring in the judgment and
dissenting in part). That sort of question, the majority held,
was for the arbitrator to decide. See id. at 452–53 (plurality
opinion).
Chief Justice Rehnquist, joined by Justices O’Connor and
Kennedy, conceived of the matter differently. In their view,
the question whether the arbitrator could arbitrate the entire
class’s claims concerned not what kind of arbitration

-- 15 of 26 --

16
proceeding the parties had agreed to, but rather who is the
arbitrator chosen to resolve each class member’s claims. See
id. at 458–59 (Rehnquist, C.J., dissenting). As those Justices
saw it, allowing the single arbitrator chosen by the named
plaintiffs and defendant company to resolve the claims of the
entire class of plaintiffs would violate the agreement’s
provision calling for selection of arbitrators by mutual consent.
That provision, to those Justices, meant that there needed to be
mutual agreement on a specific arbitrator for each class
member’s claims, which they believed had not been
accomplished by the initial agreement on a single arbitrator.
See id. at 459.
Of particular relevance here, in reaching that conclusion,
those Justices explained that “the choice of arbitrator is as
important a component of the agreement to arbitrate as is the
choice of what is to be submitted to him.” Id. at 456–57. And
because a dispute over what has been submitted to the arbitrator
was “a question for the courts under” the Supreme Court’s
precedents, rather than a question for an arbitrator, a dispute
over “how the arbitrator should be selected” was also an issue
“for the courts.” Id. at 457. Although those three Justices
expressed that view in a dissenting opinion, the majority
suggested no disagreement with the proposition that a dispute
over “how the arbitrator should be selected” is for a court to
resolve. Rather, because the Justices in the majority believed
that the case instead concerned what kind of arbitration
proceeding the parties had agreed to, they had no occasion to
disagree with the notion that questions about the selection of
an arbitrator are presumptively for a court.
Liberty, though, expresses a contrary view in this case.
According to Liberty, a disagreement about “how the arbitrator
should be selected” is ultimately a procedural issue. It should
thus presumptively be assigned to the arbitrator for resolution,

-- 16 of 26 --

17
Liberty submits, akin to “procedural questions which grow out
of the dispute and bear on its final disposition.” Howsam, 537
U.S. at 84 (internal quotation marks omitted). We are
unpersuaded by Liberty’s argument.
True, the Supreme Court in Howsam explained that
gateway procedural issues such as “waiver, delay, or a like
defense to arbitrability” are generally for the arbitrator, not a
court, to resolve. Id. (internal quotation marks omitted). But
that is not because of any categorical rule that a gateway issue
amenable to characterization as “procedural” necessarily lies
with the arbitrator. Rather, it is because threshold procedural
issues like waiver, timeliness, notice, and estoppel, are ones as
to which “parties would likely expect that an arbitrator would
decide the gateway matter.” Id.
The pivotal question is: what would parties likely expect?
And for all the reasons we have explained, when the issue is
whether an arbitrator was validly appointed by mutual
agreement, parties would likely expect resolution by a court,
not by the challenged arbitrator herself. See Bazzle, 539 U.S.
at 457 (Rehnquist, C.J., dissenting) (“[T]he parties’ agreement
as to how the arbitrator should be selected is much more akin
to the agreement as to what shall be arbitrated, a question for
the courts . . . than it is to allegations of waiver, delay, or like
defenses to arbitrability, which are questions for the arbitrator
under Howsam.”) (internal quotation marks omitted).
B.
While we thus decide that the gateway issue of whether the
arbitrator was appointed by mutual agreement is a “question of
arbitrability” within the meaning of the Supreme Court’s
decisions, that means that the issue is only presumptively for a
court to resolve. See Howsam, 537 U.S. at 83. The

-- 17 of 26 --

18
presumption is overcome if parties clearly and unmistakably
assign a question of arbitrability to the arbitrator. See id. Here,
however, there was no clear and unmistakable agreement by
the parties to give the challenged arbitrator himself the power
to determine the validity of his own appointment.
1.
In arguing that the parties agreed to empower the arbitrator
to decide whether his appointment came about by mutual
agreement, Liberty principally relies on a reference to the
American Arbitration Association in the collective bargaining
agreement. That reference appears in the provisions setting out
how the parties will select a replacement arbitrator in the event
of an arbitrator’s termination in the midst of her one-year term:
if the parties cannot agree within fifteen days on a successor
arbitrator who will serve the remainder of the term, they must
“request an agreed upon agency” to “designate a successor”
through a prescribed process, Agreement § 2(d), J.A. 47, and
the “agreed upon agency” is in turn defined to “mean either the
United States Secretary of Labor or the American Arbitration
Association,” Supp. Mem. (1969), J.A. 150.
Liberty’s reliance on that reference to the AAA proceeds
in multiple steps. First, Liberty observes, the AAA rules
governing labor arbitrations provide that an arbitrator “shall
have the power to rule on his or her own jurisdiction, including
any objections with respect to the existence, scope, or validity
of the arbitration agreement.” AAA Labor Arbitration Rule
3(a), https://www.adr.org/sites/default/files/Labor_Arbitration
_Rules_3.pdf. Second, Liberty submits, that rule encompasses
a disagreement about whether the arbitrator was validly
appointed in the first place. Third, Liberty asserts, if parties to
an arbitration agreement incorporate AAA arbitration rules,
they thereby delegate to an arbitrator the authority to decide

-- 18 of 26 --

19
gateway questions of arbitrability such as the scope of the
arbitrator’s jurisdiction. And fourth, Liberty contends, the
parties in this case intended to incorporate the AAA rules when
they mentioned the AAA in the agreement. The upshot,
according to Liberty, is an agreement by the parties to give the
challenged arbitrator himself the power to decide whether he
was validly appointed.
We see no such agreement from the mere reference to the
AAA, much less a clear and unmistakable agreement of the
kind that would be necessary to overcome the presumptive
assignment of the gateway arbitrability question in this case to
a court. First, while we have no need to resolve the matter here,
it is far from clear that an arbitrator’s ostensible power under
AAA Labor Arbitration Rule 3(a) to decide “her own
jurisdiction” on matters such as “the existence, scope, or
validity of the arbitration agreement,” extends to deciding
whether she was validly appointed in the first place. Assigning
an arbitrator authority to decide the scope of the arbitration
agreement, for instance, would seem to presuppose agreement
on the arbitrator who would make that decision. And even if
the parties attempt to give an agreed-upon arbitrator the power
to decide the scope of their arbitration contract, that conferral
of authority would not necessarily carry with it the power to
decide whether she is their agreed-upon arbitrator to begin
with. Nonetheless, we will assume arguendo that the second
step of Liberty’s argument is correct.
With regard to the third step of Liberty’s reasoning,
virtually every court of appeals to address the issue agrees that
when parties expressly incorporate the AAA rules, they thereby
clearly and unmistakably delegate to an arbitrator the power to
decide gateway questions of arbitrability (including questions
about the arbitrator’s own “jurisdiction”). See Oracle Am., Inc.
v. Myriad Grp. A.G., 724 F.3d 1069, 1074 (9th Cir. 2013)

-- 19 of 26 --

20
(cataloging cases). While our court has not specifically
addressed the issue in the context of the AAA rules, we have
reached the same conclusion when parties incorporate the rules
of the United Nations Commission on International Trade Law,
which contain a parallel provision assigning to an arbitrator the
authority to rule on her own jurisdiction. See Chevron Corp. v.
Ecuador, 795 F.3d 200, 207–08 (D.C. Cir. 2015).
We note, though, that the Supreme Court has “express[ed]
no view” on whether parties’ explicit incorporation of AAA
rules establishes a clear and unmistakable delegation of
threshold arbitrability questions to the arbitrator. Henry
Schein, 139 S. Ct. at 531; see id. at 528. There were several
references to that issue when the Court recently heard oral
argument after granting review a second time in the Henry
Schein case, but the Court has dismissed the writ of certiorari
as improvidently granted, without issuing an opinion. See
Transcript of Oral Argument at 9–10, 18–19, 31–33, 40–41,
63–66, Henry Schein, Inc v. Archer & White Sales, Inc., 141 S.
Ct. 656 (2021) (No. 19-963). For our purposes, then, we will
assume the soundness of the third step of Liberty’s reasoning,
as we did with the second step.
Liberty’s argument nonetheless falls short at its fourth and
final step. The parties’ mention of the AAA in their agreement
does not embody an incorporation of the AAA rules, let alone
a clear and unmistakable incorporation. For starters, the parties
initially added the reference to the AAA in 1969, long before
the relevant AAA rule giving the arbitrator power to decide her
own jurisdiction even came into being: MEBA notes that the
rule first appeared in the AAA rules for labor disputes in 2013,
and Liberty does not dispute the point. See MEBA Br. 26; see
also American Arbitration Association, Handbook on
Commercial Arbitration 83 & n.84 (2d ed. 2010) (explaining

-- 20 of 26 --

21
that the AAA first introduced the relevant language to any of
its rules in the late 1990s).
At any rate, even assuming the AAA rule concerning an
arbitrator’s power to decide her own jurisdiction was in effect
at the relevant time, the reference to the AAA in the parties’
agreement simply does not mention (much less incorporate) the
AAA rules. Compare, for instance, the agreement in Henry
Schein. There, the parties agreed that disputes arising under
the agreement would be resolved “by binding arbitration in
accordance with the arbitration rules of the American
Arbitration Association.” 139 S. Ct. at 528 (internal quotation
marks omitted). Here, by contrast, the agreement contains its
own rules for the conduct of proceedings to resolve grievances.
Agreement § 2, J.A. 45–52. The agreement’s reference to the
AAA instead concerns the selection of an arbitrator, and only
as a third-tier fallback matter: the AAA becomes salient only
if (i) the agreed-upon arbitrator were to be terminated in the
midst of her one-year term, (ii) the parties cannot agree on a
successor, and (iii) the parties opt to consult the AAA rather
than the Secretary of Labor for help in choosing a successor
arbitrator to serve for the balance of the year. And even if all
of those contingencies were to come to pass, the agreement
does not expressly (or necessarily) call for applying the AAA
rules for any disputes that may arise during that brief period.
In this case, it bears recalling, the AAA had no evident
involvement in the selection of the challenged arbitrator. He
was chosen by Liberty’s designated members of the Licensed
Personnel Board (without the input of MEBA’s designated
Board members), raising the question whether he was validly
appointed by mutual agreement. It is true that the AAA could
in theory play a role under the agreement in appointing an
arbitrator in circumstances far removed from this case. But the
possibility of the AAA’s involvement in selecting an arbitrator

-- 21 of 26 --

22
in one highly contingent situation addressed by the agreement
was not a clear and unmistakable incorporation in all situations
of the AAA rule giving an arbitrator power to decide questions
about her jurisdiction.
2.
While Liberty principally relies on the agreement’s
reference to the AAA in arguing that the parties agreed to
delegate gateway arbitrability questions to the arbitrator,
Liberty also notes the breadth of matters falling within the
grievance procedures’ coverage. The coverage provision
states: “All disputes relating to the interpretation or
performance of this Agreement shall be determined in
accordance with the provisions in this Section,” i.e., the
grievance and arbitration procedures. Agreement § 2(a), J.A.
46. We have previously described that provision as “quite
broad” in scope. Dist. No. 1, Pac. Coast Dist., Marine Eng’rs’
Beneficial Ass’n, AFL-CIO v. Liberty Mar. Corp., 815 F.3d
834, 846 (D.C. Cir. 2016).
While the agreement may describe the coverage of the
grievance procedures in “quite broad” terms, that description
did not clearly and unmistakably give the challenged arbitrator
himself the power to decide the validity of his own
appointment. The coverage language pertains centrally to
disputes about the myriad substantive provisions in the
agreement: matters such as wages, hours of labor, working
conditions, safety equipment, discharges of workers, vacations,
holidays, severance, and the like. Agreement i–ii, J.A. 31–32.
Insofar as the coverage language could be seen to speak to
disputes about the grievance procedures themselves, that
language does not rise to the level of a clear and unmistakable
delegation of gateway questions of arbitrability to an arbitrator.

-- 22 of 26 --

23
For example, in AT&T Technologies, Inc., v.
Communications Workers of America, 475 U.S. 643, 649
(1986), the Supreme Court invoked the general rule that “the
question of arbitrability” is ordinarily “for judicial
determination,” “[u]nless the parties clearly and unmistakably
provide otherwise.” The parties’ collective bargaining
agreement in that case provided for arbitration of “any
differences arising with respect to the interpretation of this
contract or the performance of any obligation hereunder,”
“provided that such dispute is not excluded from arbitration by
other provisions of this contract.” Id. at 645 n.1 (internal
quotation marks omitted). The Court described that arbitration
provision as “broad” in reach. Id. at 650. But the Court
nonetheless held that a gateway question about whether a
particular dispute was subject to arbitration (or instead
excluded from arbitration) “was for the court, not the arbitrator,
to decide,” and thus “should not have been referred to the
arbitrator.” Id. at 651–52. The same is true in this case of the
dispute over whether the challenged arbitrator was validly
appointed by mutual agreement.
C.
Because the dispute over whether the arbitrator was
appointed by mutual agreement poses a question of arbitrability
for resolution by a court, we will remand this case for the
district court to conduct that inquiry in the first instance.
Before doing so, however, we address a threshold disagreement
between the parties about the meaning of the mutual-agreement
requirement. In Liberty’s view, that requirement calls for the
four party-appointed members of the Licensed Personnel
Board to agree on the arbitrator. In MEBA’s view, the parties
themselves—not the Board members—must mutually agree on
the arbitrator. We believe MEBA’s understanding is correct.

-- 23 of 26 --

24
The relevant language of the collective bargaining
agreement states that the “Arbitrator will be appointed by
mutual agreement for a one (1) year period, renewable for one
(1) year periods by mutual consent.” Agreement § 2(d), J.A.
47. Read in isolation, the reference to “mutual agreement”
does not necessarily point to the Board members or the parties.
But consider the immediately ensuing sentence, discussed
previously, which states: “In the event of the termination of the
Arbitrator, the parties will agree within fifteen (15) days upon
a successor, failing which, 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. (emphases added). That sentence
expressly calls for “the parties,” not the Board members, to
agree on a successor to replace a terminated arbitrator. In that
light, the previous sentence is best read likewise to call for
mutual agreement of the parties, not the Board members.
A contrary reading would lead to an anomalous result: the
Board members would bear responsibility for appointing the
arbitrator, but in the event of that arbitrator’s termination, the
parties themselves—for the first time—would need to agree on
a successor to complete the balance of the term. The more
sensible reading would give the parties themselves
responsibility for appointing the arbitrator throughout—
whether the initial choice or any ensuing choice of a successor.
Other provisions of the agreement fortify that reading.
Section 2(e), for example, states, “The Arbitrator must render
a decision within fifteen (15) days after the hearing has been
closed unless the parties have otherwise extended such time by
mutual consent.” J.A. 48. That provision plainly speaks in
terms of mutual consent of the parties. And Section 2(d) uses

-- 24 of 26 --

25
the identical language of “mutual consent” to describe who can
renew the arbitrator’s appointment for successive terms.
To be sure, one provision of the agreement refers to a
decision to be made by mutual agreement of the Board
members: Section 2(b) states, “If said Board resolves any
grievance either by majority vote or by mutual agreement, said
grievance shall be deemed settled.” J.A. 46. But the language
of that sentence expressly points to a mutual agreement of the
Board members. Section 2(d)’s requirement that “[t]he
Arbitrator will be appointed by mutual agreement,” by contrast,
does not expressly speak in terms of either the Board members
or the parties themselves. But the immediately ensuing
sentence, as explained, resolves any ambiguity, making clear
that the provisions governing the selection of the arbitrator
contemplate a mutual agreement by the parties.
With respect to whether the parties here mutually agreed
to the appointment of the challenged arbitrator, we remand to
the district court to decide the issue. MEBA contends that the
arbitrator was not selected by mutual agreement of the parties.
And while Liberty has argued thus far that the Board members
should be deemed to have mutually agreed on the arbitrator,
Liberty is free to contend on remand that Section 2(d)’s
requirement of an agreement by the parties themselves was
satisfied.
D.
Before concluding, we note that a recent decision of a New
York state court in a case involving the same parties is no
obstacle to our deciding this appeal. See Dist. No. 1, Pac. Coast
Dist., Marine Eng’rs’ Beneficial Ass’n v. Liberty Mar. Corp.,
No. 655407/2018 (N.Y. Sup. Ct. 2021). MEBA initiated that
separate litigation after it filed this lawsuit. In the state court

-- 25 of 26 --

26
proceedings, MEBA sought to vacate arbitration awards issued
by the challenged arbitrator. Here, by contrast, MEBA seeks
to enjoin those arbitration proceedings, but it does not request
vacatur of particular arbitration awards.
The collective bargaining agreement contemplates
precisely that type of bifurcated litigation. Section 2(o) of the
agreement begins, “Any action to enjoin a grievance or
arbitration proceeding under this Agreement shall be instituted
in the federal courts of the District of Columbia.” J.A. 51. But
the provision then goes on to say, “Any action to modify or
vacate an arbitration award shall be instituted in the courts of
the State of New York.” Id. Consistent with the agreement,
MEBA sought to enjoin an arbitration proceeding in the federal
courts of the District of Columbia before instituting an action
to vacate arbitration awards in the state courts of New York.
And while Liberty alerted us to the state court decision, Liberty
has not argued that we should not decide this appeal.
* * * * *
For the foregoing reasons, we vacate the district court’s
order compelling arbitration and remand for the district court
to determine whether the arbitrator was appointed by mutual
agreement of the parties.
So ordered.

-- 26 of 26 --