Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-24-1994
Virgin Isl. Housing Auth. v. Coastal Gen'l Constr.
Svcs Corp., et al.
Precedential or Non-Precedential:
Docket 93-7819
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Recommended Citation
"Virgin Isl. Housing Auth. v. Coastal Gen'l Constr. Svcs Corp., et al." (1994). 1994 Decisions. Paper 60.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 93-7819
____________
VIRGIN ISLANDS HOUSING AUTHORITY;
AMERICAN ARBITRATION ASSOCIATION,
Virgin Islands Housing Authority, Appellee
v.
COASTAL GENERAL CONSTRUCTION SERVICES CORPORATION;
CHARLEY'S TRUCKING,
Coastal General Construction
Services Corporation, Appellant
COASTAL GENERAL CONSTRUCTION SERVICES
CORPORATION,
Appellant
v.
AMERICAN ARBITRATION ASSOCIATION;
VIRGIN ISLANDS HOUSING AUTHORITY,
Virgin Islands Housing Authority, Appellee
____________
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
(D.C. Civ. Nos. 93-00039 & 93-00042)1
___________
Argued April 22, 1994
Before: STAPLETON, ALITO, and WEIS, Circuit Judges
Filed June 24, 1994
___________
Peter Goetz, Esquire (ARGUED)
William B. Flynn, Esquire
1
This Court's order entered April 5, 1994 amending the caption on
motion of the Virgin Islands Housing Authority is vacated as
improvidently granted. The district court's order that was
appealed and the notice of appeal by Coastal General Construction
Services Corporation include the captions of both cases.
1
Goetz, Fitzpatrick & Flynn
One Pennsylvania Plaza, Suite 4401
New York, New York 10119-0196
Matthew J. Duensing, Esquire
D'Amour Jones Stryker & Duensing
Upper Level Drake's Passage
Charlotte Amalie, St. Thomas
USA Virgin Islands 00804
Attorneys for Appellant, Coastal General Construction Services
Corporation
Christopher M. Kise, Esquire (ARGUED)
Edward C. Adkins, Esquire
Adkins & Kise, P.A.
2175 Barnett Plaza
101 East Kennedy Boulevard
Tampa, Florida 33602
Vincent F. Frazer, Esquire
Law Offices of Frazer & Williams
#9 Contant-Soto Plaza
Charlotte Amalie, St. Thomas
USA Virgin Islands 00803
Attorneys for Appellee, Virgin Islands Housing Authority
____________
OPINION OF THE COURT
____________
WEIS, Circuit Judge.
In this appeal, we hold that in the Virgin Islands,
unless an independent basis for federal jurisdiction exists, a
suit to confirm or vacate an arbitrator's award pursuant to the
Federal Arbitration Act must be brought in the Territorial Court,
not in the District Court of the Virgin Islands. We also decide
that an arbitrated dispute that is based on the breach of a
construction contract growing out of a territorial housing
2
project financed by federal funds does not establish federal
question jurisdiction. Accordingly, we will reverse an order of
the district court vacating an arbitrator's award.
Plaintiff Virgin Islands Housing Authority entered into
a contract with defendant Coastal General Construction Services
Corp. for renovation of the Donoe Housing Project on St. Thomas.
Funding for the project was supplied by a program that receives
part of its funding from the United States Department of Housing
and Urban Development (HUD) under the Comprehensive Improvement
Assistance Program, 42 U.S.C. 1437l (Supp. 1993).
The contract was executed on September 29, 1988, but no
notice to proceed was issued. The Housing Authority terminated
the contract on June 6, 1989, as permitted by the terms of the
agreement. Contending that it was entitled to compensation for
the work it had performed before the termination, Coastal
submitted the matter for a hearing before the American
Arbitration Association as provided in the contract.
On February 5, 1992, Coastal presented its claim for
termination damages in the amount of $1,114,799.40 (amended on
October 5, 1992 to be $1,149,922). One day before the hearing
scheduled for November 17, 1992, however, Coastal presented an
amended claim in the amount of $2,343,933, almost double the
amount it had previously requested. At the beginning of the
hearing, the Housing Authority asked the arbitrator to either
disallow the latest amended claim or continue the hearing to
allow time for further evaluation of the amount claimed. The
arbitrator did not postpone the hearing, and in its final written
3
argument to the arbitrator, the Housing Authority asserted that
consideration of the amended claim was unfair and prejudicial.
After final submissions by the parties, the arbitrator
awarded Coastal $1,262,049. The Housing Authority filed suit in
the Territorial Court seeking to vacate the arbitration award
because of Coastal's alleged fraud in inflating its claim.
Coastal then removed the case to the District Court of the Virgin
Islands, and filed a separate action in that forum seeking
confirmation of the award. The two cases were consolidated by an
order that was originally limited to discovery. However, the
court and the parties treated the consolidation as applicable
generally.
The District Court determined that it had federal
question jurisdiction and denied the Housing Authority's motion
for remand. In a subsequent memorandum, the court found that
Coastal's last-minute submission of an amended claim with its
accompanying documentation presented sufficient cause for
postponement and concluded that the arbitrator had improvidently
closed the hearing. Based on evidence that some of the expenses
claimed by Coastal might have been inflated or completely false,
the district court reasoned that the Housing Authority may have
been prejudiced, vacated the award and "remanded for completion
of the agreed upon arbitration." Coastal has appealed.
I.
The first question confronting us is whether the
District Court's order is appealable. We resolve this issue by
reference to the statutory provisions of the Federal Arbitration
4
Act, 9 U.S.C. § 1, et seq. Section 16(a)(1) of the Act
authorizes an immediate appeal from an order that (A) refuses a
stay of an action under 9 U.S.C. § 3; (B) denies a petition to
order arbitration to proceed; (C) refuses to compel arbitration;
(D) confirms or denies confirmation of an award; or (E) modifies,
corrects, or vacates an order. Id. § 16(a)(1). On the other
hand, section 16(b) of the Act prohibits an appeal from
interlocutory orders directing or permitting arbitration to
proceed.
If the District Court had simply vacated the award in
this case, the order would be clearly appealable under subsection
16(a)(1)(E), but the additional direction for a remand has
clouded the issue. The appealability of such an order was
discussed by the United States Court of Appeals for the Fifth
Circuit in Atlantic Aviation, Inc. v. EBM Group, Inc., 11 F.3d
1276, 1280 (5th Cir. 1994). That Court observed that the Federal
Arbitration Act "does not distinguish between orders vacating
arbitration awards without directing a rehearing and those orders
which vacate awards and direct a rehearing of the arbitration
dispute; both are appealable." Id.
Forsythe Int'l, S.A. v. Gibbs Oil Co. of Texas, 915
F.2d 1017 (5th Cir. 1990), presented a similar issue. In that
case, the district court found that the misrepresentation by one
of the parties and the failure of the arbitrators to take any
corrective action required that the award be vacated and the
matter remanded to a new panel of arbitrators. The Court of
Appeals concluded that the order was appealable because otherwise
5
the parties could never determine whether the district court had
complied with the narrow statutory limits governing vacatur. Id.
at 1020. The Court stated in a footnote, however, that if the
district court had simply remanded the case to the original
arbitration panel for clarification of its award, "the policies
disfavoring partial resolution by arbitration would preclude
appellate intrusion until the arbitration was complete." Id. at
1020 n.1.
In the case before us, the District Court's order does
not specify whether it is the original arbitrator who is to
conduct the hearing on remand. Even if that is the implication,
however, we do not believe that the order is an interlocutory one
within the scope of 9 U.S.C. § 16(b). Here, the District Court
did not simply request clarification, but instead directed a re-
evaluation of the entire controversy based on the Housing
Authority's allegations that Coastal's claim for reimbursement
was submitted with fraudulent documentation.
We are not convinced by the dictum in Forsythe that
appealability in situations of this nature should be determined
by whether the remand is to the original or a new arbitrator.
Rather, the distinction is whether the additional hearing is
ordered merely for purposes of clarification -- an order that
would not be appealable -- or whether the remand constitutes a
re-opening that would begin the arbitration all over again. Here,
the vacation and remand order is essentially no different from
that of the district courts in Atlantic Aviation and Forsythe
where the Court of Appeals held that the orders were appealable.
6
We therefore follow the rulings in those cases and hold that we
do have jurisdiction to entertain this appeal.
II.
Having found that the order is appealable, the next
question is whether the District Court or the Territorial Court
had jurisdiction over the Housing Authority's petition to vacate
the arbitration award and Coastal's request for confirmation.
In Brow v. Farrelly, 994 F.2d 1027, 1032-34 (3d Cir.
1993), we discussed the division of jurisdiction between the
District Court of the Virgin Islands and the Territorial Court.
The opinion reviewed the history of the two courts as well as the
congressional and local legislative enactments that resulted in
the allocation of various forms of civil litigation between the
two forums. Id.
In brief, the Territorial Court has original
jurisdiction over all local civil actions. Id. at 1034; see 48
U.S.C. § 1612(b); V.I. Code tit. 4, § 76(a). The District Court
of the Virgin Islands has exclusive jurisdiction equivalent to
United States District Courts over such fields as admiralty,
bankruptcy, patent, copyright and trademark, and other matters
not relevant here. Brow, 994 F.2d at 1034 (citing 48 U.S.C.
§ 1612(a)). The Territorial Court and the District Court have
concurrent jurisdiction over federal question and diversity
cases. Id.
Because complete diversity of citizenship does not
exist between the parties in this case, the jurisdiction of the
7
District Court cannot rest on that ground.2 Nor does this case
involve those matters that would come within the exclusive
jurisdiction of the District Court. That leaves for
determination whether a federal question exists here to give the
District Court jurisdiction.
28 U.S.C. § 1331(a) gives district courts jurisdiction
over "civil actions arising under the Constitution, laws, or
treaties of the United States." The Supreme Court has explained
that section 1331(a) authorizes the courts to hear either
originally or by removal "only those cases in which a well-
pleaded complaint establishes either that federal law creates the
cause of action or that the plaintiff's right to relief
necessarily depends on resolution of a substantial question of
federal law." Franchise Tax Bd. v. Construction Laborers
Vacation Trust, 463 U.S. 1, 27-28 (1983); see also 13B Charles A.
Wright et al., Federal Practice and Procedure § 3562, at 46
(1984).
Removal jurisdiction exists only if the case could have
been brought in the federal court under its original
2
Coastal's complaint in the District Court named the American
Arbitration Association and the Housing Authority as defendants.
Because diversity of citizenship existed between Coastal and the
Arbitration Association, Coastal asserted that the District Court
had supplemental jurisdiction over the Housing Authority under 28
U.S.C. § 1367. That contention was an erroneous interpretation
of section 1367 because that statute does not affect the
traditional rule of complete diversity. Even though Coastal
chose the wrong route in its complaint, the District Court
properly considered whether the suit raises a federal question to
support jurisdiction on grounds other than diversity. See
Boarhead Corp. v. Erickson, 923 F.2d 1011, 1018 (3d Cir. 1991);
see also 5 Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1210, at 121 (1990).
8
jurisdiction. Franchise Tax Bd., 463 U.S. at 10. Moreover, the
fact that a defense based on federal law will be raised does not
create jurisdiction in the federal courts unless the case falls
within that small category where the governing federal statute
preempts the field and was clearly intended to support removal
jurisdiction. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S.
58, 66-67 (1987). That circumstance is not present here.
Federal and state courts have concurrent jurisdiction
to enforce the provisions of the Arbitration Act. In Moses H.
Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32
(1983), the Supreme Court observed that the "Arbitration Act is
something of an anomaly" in federal court jurisdiction. The
statute creates federal substantive law regulating an agreement
to arbitrate, but "it does not create any independent federal-
question jurisdiction under 28 U.S.C. § 1331 . . . or otherwise."
Id. As we noted in Isidor Paiewonsky Assocs., Inc. v. Sharp
Properties, Inc., 998 F.2d 145, 153 n.8 (3d Cir. 1993), the
Arbitration Act does not supply federal jurisdiction where it
does not otherwise exist.
The Arbitration Act thus does not answer the
jurisdictional issue in the case at hand. In Prudential-Bache
Sec., Inc. v. Fitch, 966 F.2d 981 (5th Cir. 1992), a brokerage
firm filed suit in federal court to compel arbitration of a
dispute with its customer. The underlying controversy arose over
contentions that the brokerage firm had violated federal
securities laws. However, because the complaint did not include
any reference to a federal statute other than the Arbitration
9
Act, the Court of Appeals followed the well-pleaded complaint
rule and held that no federal question jurisdiction existed. Id.
at 988-89. Prudential-Bache thus emphasizes that not only must
federal jurisdiction exist aside from the Arbitration Act, but
the independent basis must appear on the face of the complaint.
The record in the case at hand establishes that neither
of the complaints filed by the Housing Authority and Coastal
contain allegations sufficient under the well-pleaded complaint
rule to support a finding of a substantial federal question. On
that basis alone, the District Court lacked jurisdiction.
Even if it were permissible to look beyond the
complaint to the substance of the arbitrated dispute between the
parties, we would still conclude that no federal question is
present here. The District Court concluded that it had
jurisdiction based on four factors: (1) enforcing or vacating
the award implicates contractual obligations between HUD and the
Housing Authority "with respect to the use of federal funds
earmarked for the construction projects at issue in which funds
Coastal has an interest"; (2) resolution of the dispute requires
construction of HUD requirements for the termination of a
contract and a federal interest exists in maintaining the uniform
interpretation of federal contractual provisions; (3) the Housing
Authority's allegations that Coastal had submitted fraudulent
documentation with its claim required an interpretation of the
Arbitration Act; and (4) judicial economy would be best served by
not remanding because any appeal from the Territorial Court would
be to the District Court.
10
The last factor, judicial economy -- unfortunately as
this case demonstrates -- cannot be a factor in determining the
jurisdiction of federal courts. The allocation of judicial
business to the courts is a matter of constitutional and
legislative mandates that must be honored by the courts
regardless of considerations of efficiency.
Nor does the Housing Authority's claim that fraud
occurred in the arbitration process confer jurisdiction on the
District Court. The Arbitration Act provides that a court may
vacate an award that has been procured by fraud or where the
arbitrator was guilty of misconduct in refusing a postponement of
the hearing. 9 U.S.C. § 10(a)(1), (3). Nevertheless, as noted
earlier, the Supreme Court made plain in Moses H. Cone Memorial
Hosp. that the Arbitration Act alone cannot serve as a basis for
finding federal jurisdiction. "[T]he substantive law the Act
created [is] applicable in state and federal courts," Southland
Corp. v. Keating, 465 U.S. 1, 12 (1984), but the Act does not
supply independent federal question jurisdiction. Id. at 15 n.9.
The possibility, therefore, that the court would be
required to interpret the fraud provisions the Arbitration Act
does not meet federal question standards; another independent
basis of jurisdiction must exist. As the Southland Court noted,
"a party may assert general contract defenses such as fraud to
avoid enforcement of an arbitration agreement." Id. at 16 n.11.
That, however, like other general contract defenses does not
establish federal jurisdiction under the Arbitration Act.
11
We come, then, to the other two factors cited by the
district court, namely that enforcing or vacating the award not
only implicates contractual obligations between HUD and the
Housing Authority with respect to the use of federal funds, but
also that a resolution of the dispute requires an interpretation
of HUD requirements for termination of a contract. In this
connection, the court noted the federal interest in maintaining a
uniform interpretation of federal contract provisions.
We may assume, albeit hesitantly, that resolution of
the dispute between Coastal and the Housing Authority would
implicate these factors. That assumption, however, does not
supply the necessary independent basis for jurisdiction.
Preliminarily, we note that the interest in uniformity in
construction of federal contractual provisions is not enough to
pose federal question issues. Merrell Dow Pharmaceuticals Inc.
v. Thompson, 478 U.S. 804, 815-16 (1986).
As we said in Lindy v. Lynn, 501 F.2d 1367, 1369 (3d
Cir. 1974), an action under 28 U.S.C. § 1331(a) arises only if
the complaint seeks a remedy expressly granted by federal law or
if the action requires construction of a federal statute, or at
least a distinctive policy of a federal statute requires the
application of federal legal principles. "[T]he fact that a
contract is subject to federal regulation does not, in itself,
demonstrate that Congress meant that all aspects of its
performance or nonperformance are to be governed by federal law
rather than by the state law applicable to similar contracts in
businesses not under federal regulation." Id.
12
In Lindy, the dispute between the parties was focused
on the correct interpretation and effect of contractual documents
normally determined by state law. We concluded that "[t]he fact
that these documents were subject to the regulations of [a
federal agency] is not significant . . . ." Id.
The Court of Appeals in West 14th St. Commercial Corp.
v. 5 W. 14th Owners Corp., 815 F.2d 188, 192 (2d Cir. 1987),
outlined the two tests to be applied when reviewing federal
question jurisdiction. First, the question is whether federal
law creates the cause of action. If not, the second inquiry is
whether the complaint poses a substantial federal question. The
Supreme Court has cautioned that "`the mere presence of a federal
issue in a state cause of action does not automatically confer
federal question jurisdiction.'" Id. at 193 (quoting Merrell
Dow, 478 U.S. at 813). The nature of the federal interest at
stake is determinative of whether it is sufficiently substantial
to displace state law. Id.
In Weeks Constr., Inc. v. Oglala Sioux Housing Auth.,
797 F.2d 668 (8th Cir. 1986), HUD provided funds for construction
of housing units by a Housing Authority for an Indian tribe. A
contractor sued the Housing Authority and asserted federal
question jurisdiction. The Court of Appeals rejected that
assertion, holding that the contractor's claims were based on its
agreement with the Housing Authority -- an interpretation of
which was governed by local, not federal, law. Id. at 672. "[The
contractor's] action for money damages may have a connection with
activities undertaken as part of functions authorized by federal
13
law, but did not itself arise under federal law and requires only
the interpretation and application of contract principles under
local law." Id. at 675 n.8; see also Morongo Band of Mission
Indians v. California State Bd. of Equalization, 858 F.2d 1376,
1385-86 (9th Cir. 1988) (In suit for breach of lease, fact that
it was entered into under authority conferred by federal statute
did not support federal question jurisdiction).
Even if Coastal's complaint contained assertions
respecting the use of federal funds in the construction project
and the adoption of contractual forms authorized by HUD, federal
question jurisdiction would still not be established.
Essentially, the dispute between the parties is whether the
Housing Authority could terminate the contract without paying for
the expenses that Coastal had incurred up to that point. This
dispute is thus governed by local, not federal, law.
The contract explicitly states that HUD is not a party
to the agreement in this case. Moreover, the agency
understandably declined to participate in the arbitration
proceedings. Coastal does not seek money from HUD, but from the
Housing Authority. Nor has Coastal cited any HUD regulation or
any statutory provision that would substantially affect the
disposition of the claim against the Housing Authority. In these
circumstances, federal question jurisdiction would not exist even
in the absence of the well-pleaded complaint rule.
We conclude, therefore, that the Territorial Court has
exclusive jurisdiction over the complaint filed by the Housing
Authority and that removal to the District Court was improper.
14
Thus, the suit must be remanded to the Territorial Court.
Similarly, because the Territorial Court also has exclusive
jurisdiction over the action filed by Coastal, the district court
must either dismiss that action or it may, "in the interest of
justice," transfer the suit to the Territorial Court pursuant to
the authority conferred in V.I. Code tit. 4, § 32(b). See Brow,
994 F.2d at 1037 n.10.
One final matter remains for determination. The
Housing Authority has requested that we impose sanctions against
Coastal for its improvident removal of the litigation to the
District Court. Coastal had relied primarily upon a theory of
allocation of jurisdiction between the District and Territorial
Courts that was not clarified until this Court issued its opinion
in Brow. Because the removal took place before the date of that
opinion, we conclude that Coastal had a colorable claim of
jurisdiction at the time it began the removal action. In these
circumstances, we do not believe that sanctions would be
appropriate.
The judgment of the District Court will be vacated, and
the cases will be remanded to the District Court with directions
to remand the suit brought by the Housing Authority to the
Territorial Court and to dismiss or transfer the complaint filed
by Coastal in the District Court. Each party to bear its own
costs.
15
16
17
Virgin Islands Housing Authority v. Coastal General Construction Services Corp.
Court: Court of Appeals for the Third Circuit
Date filed: 1994-06-24
Citations: 27 F.3d 911, 30 V.I. 417
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