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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2003 Decided July 1, 2003
No. 02-7125
BOMBARDIER CORPORATION,
APPELLEE
v.
NATIONAL RAILROAD PASSENGER CORPORATION,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02335)
Leslie Gordon Fagen argued the cause for appellant. With
him on the brief were Robert P. Parker, Timothy F. Brown
and Richard J. Webber. Evan S. Stolove entered an appear-
ance.
Philip Le B. Douglas argued the cause and filed the brief
for appellee.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, ROGERS and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: National Railroad Passenger
Corporation brought this interlocutory appeal from the dis-
trict court’s denial of a motion to dismiss. Amtrak attempts
to invoke Section 16 of the Federal Arbitration Act, 9 U.S.C.
§ 16 (2000), which permits interlocutory appeal in enumerat-
ed cases. Because we conclude that this appeal does not fall
within the parameters of the limited grant of jurisdiction
under Section 16, we dismiss the appeal.
Background
In May 1996 appellant, National Railroad Passenger Cor-
poration (‘‘Amtrak’’), entered into three contracts with a
consortium of contractors including appellee Bombardier Cor-
poration for the design and manufacture of twenty Acela
high-speed trainsets and various maintenance facilities; the
design and manufacture of fifteen high-speed locomotives;
and maintenance of Acela trains for ten years. Each of the
contracts contains dispute resolution provisions for claims
‘‘arising from or relating to the contract.’’ According to these
provisions, initially, all claims are referred to the Contracting
Officer’s Representative for a non-binding determination. If
Bombardier finds that determination unsatisfactory, it may
appeal to the Contracting Officer, whose decision is final and
binding as to all matters except money damages and rulings
as to whether services or work required by a change order is
outside the general scope of the contract. Bombardier is
entitled to appeal these types of issues to a three-member
dispute resolution board, composed of one member of its
choosing, one of Amtrak’s choosing and a chairman selected
by those two appointed members. The board’s decisions are
binding only in disputes involving amounts of less than $5
million. With respect to claims for more than $5 million, the
board’s determination is binding only if the parties agree to
it. The board’s determination of the size of the dispute is
final and binding. Finally, the contract provides that if the
parties are unable to resolve their disputes through the board
or negotiation, they may pursue their rights ‘‘in law or in
3
equity with respect to any Claim for which a final and binding
decision has not been issued.’’
Both Amtrak and Bombardier have recognized that the
design and construction of the Acela trainsets has been
delayed and complicated by the numerous disputes between
them. Bombardier claims that Amtrak repeatedly changed
its design specifications; supplied defective designs; meddled
in the design and construction process; and withheld prog-
ress payments. Amtrak claims that Bombardier violated the
terms of the contracts by delivering the trainsets late. In
March 2000, the parties began settlement negotiations and
Amtrak submitted a portion of the dispute, involving Bombar-
dier’s failure to deliver, to the initial stages of the contractual-
ly provided-for dispute resolution procedures. Both the Con-
tracting Officer’s Representative and the Contracting Officer
found in favor of Amtrak, but when Bombardier requested
that a dispute resolution board be empaneled pursuant to the
contract provisions, Amtrak refused, claiming such a board
would have no jurisdiction under the contract because of the
nature of the dispute.
On November 8, 2001, Bombardier filed this action in the
district court seeking more than $200 million in damages
caused by Amtrak’s alleged changes to the contracts, and
Amtrak filed a counterclaim for $200 million. On December
3, 2001, Amtrak moved to dismiss the claim pursuant to Rule
12(b)(6), on the grounds that Bombardier had not exhausted
the contract’s dispute resolution procedures, which it argued
were a condition precedent to litigation. Amtrak’s motion to
dismiss did not expressly argue that the contract contained an
arbitration clause enforceable under the Federal Arbitration
Act (‘‘FAA’’), although the motion contained some passing
references to arbitration and cited several FAA cases. The
district court denied the motion to dismiss. See Bombardier
Corp. v. Nat’l R.R. Passenger Corp., Civ. No. 01–2335 (D.D.C.
Sept. 30, 2002). The court held that the contract’s dispute
resolution procedures were essentially non-binding mediation
clauses, not a condition precedent to litigation. Further, the
court reasoned that sending the parties to dispute resolution
would be futile and inefficient, given the board’s inability to
4
issue binding awards of more than $5 million. See id. at 5–7;
10.
On October 11, 2002, Amtrak appealed that decision, invok-
ing Section 16 of the FAA, 9 U.S.C. § 16, which permits, in
defined categories of cases, the immediate appeal of orders
hostile to arbitration, whether the orders are final or interloc-
utory. Amtrak then filed a motion for stay pending appeal,
which the district court denied on the grounds that the
contract’s dispute resolution procedure was not ‘‘arbitration’’
as covered by the FAA. Amtrak then moved for a stay in
this court. We entered an order denying such a stay as
unnecessary, because Amtrak’s appeal of the motion to dis-
miss was facially non-frivolous and thus the district court was
divested of jurisdiction over the underlying action until we
could determine the threshold issue of whether the dispute
between the parties is arbitrable under the FAA. See Bom-
bardier Corp. v. Nat’l R.R. Passenger Corp., No. 02–7125
(D.C. Cir. Dec. 12, 2002). Because we find that we have no
jurisdiction to hear the interlocutory appeal in this case, we
hereby dismiss that appeal.
Analysis
We review denials of motions to dismiss de novo. Kowal v.
MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994). The posture of this case requires that before we can
examine whether the district court was correct in dismissing
the motion, we must determine whether we have appellate
jurisdiction to hear such an appeal pursuant to Section 16 of
the FAA. That section provides the following in pertinent
part:
(a) An appeal may be taken from—
(1) an order—
(A) refusing a stay of any action under section 3 of
this title,
(B) denying a petition under section 4 of this title to
order arbitration to proceed,
5
(C) denying an application under section 206 of this
title to compel arbitration,
(D) confirming or denying confirmation of an award
or partial award, or
(E) modifying, correcting, or vacating an award;
(2) an interlocutory order granting, continuing, or
modifying an injunction against an arbitration that is
subject to this title; or
(3) a final decision with respect to an arbitration that
is subject to this title.
9 U.S.C. § 16(a).
Generally, courts of appeal have appellate jurisdiction over
only ‘‘final decisions’’ of the district courts. 28 U.S.C. § 1291
(2000). Ordinarily, orders denying motions to dismiss are not
final decisions because such orders ensure that litigation will
continue in the district court. See Lauro Lines s.r.l. v.
Chasser, 490 U.S. 495, 498 (1989); United States v. Rose, 28
F.3d 181, 185 (D.C. Cir. 1994). Therefore, we would not have
jurisdiction to hear Amtrak’s appeal, absent the applicability
of a statute granting appellate authority, such as the provi-
sion above.
First, we recognize that Section 16 is a limited grant of
jurisdiction. In general, statutes authorizing appeals should
be narrowly construed. See Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 43 (1983); accord Silk-
wood v. Kerr–McGee Corp., 464 U.S. 238, 247 (1984), and
Stone v. INS, 514 U.S. 386, 405 (1995). This principle is
particularly well-applied to the statute at issue here because
it authorizes not only appellate jurisdiction, but in some cases,
interlocutory appeals which constitute exceptions to the final
decision rule of Section 1291.
Under the plain language of Section 16, the district court’s
order denying the Rule 12(b)(6) motion to dismiss is not one
of those enumerated under Section 16(a)(1) or (2), allowing
for interlocutory appeal, and therefore, this court lacks juris-
diction to consider this appeal. Amtrak’s motion to dismiss
was neither a motion to compel arbitration under 9 U.S.C. § 4
6
nor a motion to stay arbitration under 9 U.S.C. § 3. The
order denying the motion was certainly not a final decision,
qualifying for appellate review under Section 16(a)(3), because
it did not ‘‘end[ ] the litigation on the merits and leave[ ]
nothing more for the court to do but execute the judgment.’’
Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86 (2000)
(quotation omitted). Despite the plain language of the stat-
ute Amtrak argues that dicta from the Supreme Court’s
decision in Green Tree demonstrates that this court does
indeed have jurisdiction over an appeal of the district court’s
order denying its motion to dismiss.
In Green Tree, in contrast to the facts of this case, the
Court considered whether an order granting, not denying, a
motion to dismiss for failure to arbitrate and compelling
arbitration was a ‘‘final decision with respect to arbitration’’
under Section 16(a)(3). Green Tree, 531 U.S. at 83–84. The
Court defined ‘‘final decision’’ as quoted above, and thus held
that an order dismissing the action falls within the meaning of
Section 16(a)(3). Id. at 89. The Court also observed that
Section 16 ‘‘generally permits immediate appeal of orders
hostile to arbitration, whether the orders are final or interloc-
utory, but bars appeal of interlocutory orders favorable to
arbitration.’’ Id. at 86.
Amtrak argues that the Court’s dicta indicates that any
order hostile to arbitration may be immediately appealed,
even if the type of order is not enumerated in Section 16. We
disagree. Amtrak’s interpretation of Green Tree would sig-
nificantly and improperly expand not only the scope of Sec-
tion 16, but of the Court’s opinion. The Court merely ob-
served that Section 16 ‘‘generally permits’’ the appeal of
orders hostile to arbitration, Green Tree, 531 U.S. at 86
(emphasis added), and indeed, the statute plainly permits the
appeal of six types of such orders. See 9 U.S.C.
§ 16(a)(1)(A)-(E), (a)(2). Despite its careful enumeration of
appealable orders, Congress did not include the denial of a
motion to dismiss. The Supreme Court did not attempt to
rewrite the FAA in Green Tree, and nor will we now. The
plain language of the statute precludes Amtrak’s interlocu-
tory appeal.
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Amtrak also argues that we should ‘‘treat’’ its motion to
dismiss as a motion to compel arbitration or a motion to stay
proceedings pending arbitration. The principle of narrow
construction we apply to statutes authorizing appeals counsels
against broad construction of a motion forwarded for review
under such a statute. However, even if we were to construe
a motion to dismiss more broadly in some circumstances, the
current case does not present a set of facts favoring broad
construction. A motion to compel under 9 U.S.C. § 4 or stay
under 9 U.S.C. § 3, by definition, invokes the FAA’s policy
favoring enforceability of arbitration agreements and asks the
Court to order arbitration, presupposing the party’s intent to
arbitrate its disputes. Amtrak’s motion did neither, therefore,
it was not analogous to either of those motions, and we will
not treat it as if it were.
Amtrak did not base its motion to dismiss on the FAA’s
requirement that arbitration agreements be strictly enforced.
It sought an outright dismissal under 12(b)(6) on the grounds
that Bombardier failed to comply with the dispute resolution
procedures, which it did not contend was arbitration. In the
memorandum supporting its motion, Amtrak repeatedly re-
ferred to the contractually provided procedures, but never as
arbitration. Neither did it suggest that the procedures were
covered by the FAA. More importantly, unlike a motion to
compel or stay under the FAA, Amtrak’s motion exhibited no
intent to pursue arbitration—indeed, it sought outright dis-
missal with no guarantee of future arbitration. Therefore, we
decline to ‘‘treat’’ Amtrak’s motion as anything other than
what it was—a motion for dismissal under 12(b)(6).
Conclusion
We therefore dismiss the appeals for lack of jurisdiction
because the district court’s order denying Amtrak’s motion to
dismiss is not among those types of orders entitled to appeal
under Section 16 of the FAA.