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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 10, 2004 Decided June 29, 2004
No. 03-7135
RAYTHEON COMPANY,
APPELLANT
v.
ASHBORN AGENCIES, LTD,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv02133)
Brian P. Waagner argued the cause for appellant. With
him on the briefs were J. William Eshelman and J. Michael
Littlejohn.
Matthew C. Gruskin 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: GINSBURG, Chief Judge, and SENTELLE and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Raytheon Company appeals from
the district court’s dismissal of its petition to compel arbitra-
tion pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 4
and 206. Because Raytheon’s claimed injury is not redressa-
ble by the court, the Company lacks standing to sue under
Article III of the Constitution of the United States. Hence
we affirm the judgment of the district court dismissing its
petition.
I. Background
In March 1977 Raytheon’s predecessor, E-Systems, Inc.
entered into a Consulting Agreement with Ashborn Agencies,
Ltd., an Israeli corporation. The Agreement contained the
following arbitration clause:
If any dispute arises between the parties hereto, as to
the meaning of this Agreement or any parts thereof, or
as to the rights or obligations of either party hereunder,
such dispute or difference shall be referred for decision
to a Board of three arbitrators. In case of failure of
either party to appoint its arbitrator TTT the missing
members of the Board shall be appointed by the Interna-
tional Chamber of Commerce. The arbitration shall be
conducted in Washington, D.C., United States of Amer-
ica. The parties hereto agree to accept the decision of
the Board of arbitrators and judgement upon any award
rendered hereunder may be entered into in any Court of
CONSULTANT’s country or the United States of Amer-
ica. The rules of arbitration of the International Cham-
ber of Commerce shall apply. The arbitrator shall apply
the laws of the State of Texas, United States of America.
In March 2000 Ashborn demanded $575,152 from Raytheon
for services provided under the Agreement, but Raytheon
disputed the amount. When the parties proved unable to
settle the matter, Raytheon filed a demand for arbitration
3
with the ICC. Shortly thereafter Ashborn informed Ray-
theon it had decided to pursue its claims in the courts of
Israel, and it would ‘‘strictly oppose any attempt to enforce
[the arbitration] provision.’’
Ashborn filed an action for damages in the Tel Aviv-Jaffa
District Court, raising claims Raytheon was seeking to re-
solve through arbitration. Raytheon responded by filing in
the United States District Court for the District of Columbia
a petition to compel arbitration pursuant to the Federal
Arbitration Act; it sought an order requiring Ashborn ‘‘to
comply with its written commitment to arbitrate its commer-
cial disputes arising from its two-decade marketing consulting
agreement with [Raytheon].’’
As a party to an international arbitration agreement, Ray-
theon was proceeding pursuant to Chapter 2 of the FAA, see
9 U.S.C. § 201 et seq., which incorporates the Convention on
the Recognition and Enforcement of Foreign Arbitral
Awards. Chapter 1 of the Act applies, however, ‘‘to actions
and proceedings brought under [Chapter 2] to the extent that
[Chapter 1] is not in conflict with [Chapter 2] or the Conven-
tion as ratified by the United States.’’ Id. § 208. Chapter 1,
section 4 of the Act, 9 U.S.C. § 4, provides in relevant part:
A party aggrieved by the alleged failure, neglect, or
refusal of another to arbitrate under a written agreement
for arbitration may petition TTT for an order directing
that such arbitration proceed in the manner provided for
in such agreement.
Although the district court determined the parties had
agreed to arbitrate many of the claims Ashborn is pursuing in
Israel, it dismissed Raytheon’s petition. The district court
concluded, first, the aggrieved party requirement in § 4 does
not conflict with anything in Chapter 2 or the Convention;
and second, because the arbitration rules of the ICC — which
were incorporated by reference into the parties’ agreement —
permit ex parte proceedings, Raytheon is not ‘‘aggrieved’’
within the meaning of § 4 by Ashborn’s refusal to participate,
and therefore lacks standing to sue.
4
On appeal Raytheon disputes both points. Because we
conclude Raytheon does not have constitutional standing to
sue, we do not reach either one. See Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83, 96-102 (1998) (Article III
standing must be resolved as threshold matter).
II. Analysis
In order to satisfy the ‘‘irreducible constitutional minimum
of standing,’’ a petitioner must demonstrate: (1) it has suf-
fered (or is about to suffer) an injury-in-fact, that (2) was
caused by the respondent and (3) would be redressed by the
relief sought from the court. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Here we are concerned
with the first and the third of these requirements.
Raytheon first claims it is injured by Ashborn’s refusal to
arbitrate. Because the Agreement and the rules of the ICC
allow Raytheon to proceed to arbitration ex parte, however,
Raytheon has not demonstrated it suffered any injury-in-fact
as a result of Ashborn’s refusal to participate in the arbitra-
tion; Ashborn’s absence should, if anything, make it easier
for Raytheon to obtain a favorable award. In any event, it is
insufficient to establish that Raytheon has been injured.
Raytheon next argues it is injured by Ashborn’s having
sued it in Israel. Specifically, Raytheon points to the costs
and burdens associated with filing its court-ordered response
to Ashborn’s complaint, translating pleadings and other docu-
ments from Hebrew into English and vice versa, and arrang-
ing for the travel of witnesses and company personnel from
the United States to Israel ‘‘in the midst of ongoing and
dangerous terrorist attacks’’ in the region. Raytheon’s hav-
ing to incur these costs and burdens certainly satisfies the
injury requirement of Article III. See Franchise Tax Bd. of
Ca. v. Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990) (threat
of relatively small financial injury sufficient to confer Article
III standing); Sea-Land Serv., Inc. v. U.S. Dep’t of Transp.,
137 F.3d 640, 648 (D.C. Cir. 1998) (‘‘The concrete cost of an
additional proceeding is a cognizable Article III injury’’).
5
This claimed injury, however, implicates another requirement
of Article III, namely, that it be redressable by the court.
An order compelling Ashborn to appear in arbitration
proceedings in the District of Columbia would not do any-
thing to redress the injury Raytheon suffers as a result of
having to defend itself in the case Ashborn brought in Israel.
Unlike the plaintiff in the case upon which Raytheon princi-
pally relies, see Northwest Airlines, Inc. v. R & S Co., 176 F.
Supp. 2d 935, 939-41 (D. Minn. 2001) (issuing order to compel
arbitration and preliminary injunction to halt litigation defen-
dants had initiated in Lebanon), Raytheon, perhaps wisely, is
not seeking to enjoin its adversary from pursuing litigation
abroad, see China Trade & Dev. Corp. v. M.V. Choong Yong,
837 F.2d 33, 35 (2d Cir. 1987) (principles of comity counsel
that injunctions restraining foreign litigation be ‘‘used spar-
ingly’’ and ‘‘granted only with care and great restraint’’); see
also General Elec. Co. v. Deutz AG, 270 F.3d 144, 160 (3d Cir.
2001); Laker Airways, Ltd. v. Sabena, Belgian World Air-
lines, 731 F.2d 909, 937-38 (D.C. Cir. 1984).
Absent reason to believe Ashborn would drop its case in
Israel if it had to appear at the arbitration proceedings in the
District of Columbia, which Raytheon does not claim and
Ashborn clearly said it would not do, Raytheon simply cannot
demonstrate it is ‘‘likely, as opposed to merely speculative,
that [its] injury will be redressed by a favorable decision.’’
Lujan, 504 U.S. at 561. Because the relief Raytheon seeks
here will not redress the injury of which it complains, the
Company lacks Article III standing to sue.
III. Conclusion
For the foregoing reasons, the judgment of the district
court dismissing Raytheon’s petition is
Affirmed.