Introduction
This post discusses the U.S. Court of Appeals for the Fourth Circuit’s recent decision in SmartSky Networks, LLC v. DAG Wireless, Ltd., ___ F.4th ___, No. 22-1253, slip op. (4th Cir. Feb. 13, 2024). SmartSky held that, under Badgerow v. Walters, 596 U.S. 1, 142 S. Ct. 1310 (2022), if a party makes a motion to confirm, vacate, or modify an award in an action over which the Court has federal-question subject matter jurisdiction, then it must nevertheless demonstrate that the Court would have had subject matter jurisdiction had the motion been brought as a standalone petition to confirm, vacate, or modify. That is so even if the Court has under Federal Arbitration Act (“FAA”) Section 3 stayed the action pending arbitration.
Suppose:
- A and B, both New York citizens, entered a contract containing an arbitration agreement;
- A and B become embroiled in a dispute that is governed by a federal statute;
- A sues B in federal court, properly invoking the federal court’s federal- question jurisdiction, 28 U.S.C. § 1331;
- B demands arbitration, and moves to compel arbitration under Section 4 and for a stay of litigation pending arbitration under Section 3;
- A unsuccessfully opposes the motion, the Court compels arbitration and grants a Section 3 stay of litigation pending arbitration.
- B ultimately obtains a $100,000 (exclusive of costs and interest) award in its favor and moves in the stayed action to confirm the award.
- A opposes the motion on the ground the court has no subject matter jurisdiction to confirm the award.
SmartSky would require the Court to dismiss A’s motion for lack of subject matter jurisdiction, even though A made the motion in an action over which the Court had subject matter jurisdiction, the Court had compelled the arbitration that resulted in the award, and the Court had stayed the action pending arbitration under Section 3. There is no federal-question jurisdiction, and because both A and B are citizens of New York, no diversity jurisdiction.
According to SmartSky, the dismissal of the motion to confirm would be required by Badgerow.
Badgerow
In Badgerow the Supreme Court of the United States (“SCOTUS”) held that a basis for subject-matter jurisdiction—independent from the FAA itself—must appear on the face of a standalone, petition to confirm or vacate an arbitration award and that independent basis cannot be established by “looking through” to the underlying arbitration proceeding that resulted in the award. See Badgerow, 142 S. Ct. at 1314, 1320.
Simply petitioning a court for relief under Sections 9, 10, 0r 11 of the Federal Arbitration Act (“FAA”) raises no federal question and does not confer on a court federal-question subject-matter jurisdiction, as strange as that might sound to the uninitiated. In the absence of a federal question appearing on the face of the freestanding petition—such as a claim for relief falling under Chapter Two of the FAA, which implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), see 9 U.S.C. §§ 202, 203; 28 U.S.C. § 1331, or one falling under Chapter Three, which implements or Inter-American Convention on International Commercial Arbitration (the “Inter-American Convention”), see 9 U.S.C. §§ 301, et seq.; 28 U.S.C. § 1331—the only possible basis for federal subject-matter jurisdiction over such a standalone petition is diversity of citizenship. See 28 U.S.C. § 1332(a).
If there is no diversity jurisdiction, and if the action does not concern an award falling under the New York or Inter-American Conventions, then the substantive provisions of Chapter One still apply but enforcement must be sought in state court. See Vaden v. Discover Bank, 556 U.S. 49, 59 (2009) (“Given the substantive supremacy of the FAA, but the Act’s nonjurisdictional cast, state courts have a prominent role to play as enforcers of agreements to arbitrate”).
A “Jurisdictional Anchor” Post-Badgerow?
The author explained in a recent Arbitration Law Forum post—Philip J. Loree Jr., Weighing the “Jurisdictional Anchor”: Post-Badgerow Second Circuit Subject Matter Jurisdiction Requirements for Applications to Confirm, Modify, or Vacate Arbitration Awards, Arbitration Law Forum (Nov. 13, 2023) (the “Jurisdictional Anchor Post”)— that Badgerow leaves unanswered an important question. It arises when—in a preexisting action over which the Court already has federal-question subject matter jurisdiction—a Court grants a motion made under Sections 4 and 3 of the FAA to compel arbitration and stay litigation, and a party subsequently moves in the same, stayed action to confirm, vacate, or modify an award resulting from the compelled arbitration. Does the Court in the stayed action have continuing subject matter jurisdiction to hear the parties’ motions to confirm or vacate the award, even though there is no independent basis for federal question or diversity jurisdiction? Can the existing but stayed federal-question lawsuit provide a “jurisdictional anchor” for the motions to confirm or vacate even though the Court would not, under Badgerow, have subject matter jurisdiction over those motions if either were brought as an independent, freestanding petition to confirm or vacate an award?
SmartSky, as we’ve seen, says the answer to those questions is no: the parties moving to confirm or vacate must establish an independent basis for subject matter jurisdiction even when the motion is brought in a pre-existing but stayed lawsuit over which the Court undisputedly had federal question jurisdiction.
SmartSky has flatly rejected the “jurisdictional anchor” theory (a/k/a “anchor jurisdiction”), under which the answer would be yes: the parties do not have to establish an independent basis for subject matter jurisdiction because they are filing their motions in a preexisting stayed action over which the Court has subject matter jurisdiction.
SmartSky Caused a Circuit Split Concerning the Viability of Anchor Jurisdiction
SmartSky‘s conclusion directly conflicts with the only other post-Badgerow U.S. Circuit Court of Appeals decision to address anchor jurisdiction, Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099 (7th Cir. 2023). If we count pre-Badgerow cases, SmartSky also conflict with the pro-anchor-jurisdiction holdings of the Second, Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits. Dodson Int’l Parts v. Williams Int’l Co., 12 F.4th 1212, 1227-28 (10th Cir. 2021) (citing cases).
SmartSky’s Petition for Rehearing and Rehearing En Banc
Arbitration proponent SmartSky has added to its legal team SCOTUS ace Daniel L. Geyser, Esq., Chair of Haynes and Boone, LLP‘s U.S. Supreme Court Practice, and, with Mr. Geyser’s assistance, prepared and submitted a very well-written and persuasive Petition for Rehearing and Rehearing En Banc, which among other things, pointed out the Circuit conflicts which SmartSky has created with both pre- and post-Badgerow decisions and explained why SmartSky believes the Fourth Circuit misconstrued Badgerow and failed to adhere to settled subject-matter-jurisdiction principles. SmartSky, No. 22-1253, Dk. 77.
The Petition also pointed out that, even if SmartSky correctly construed Badgerow, there is an independent basis for jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) because two of the parties are foreign citizens, DAG Wireless LTD (“Wireless”) and David D. Gross.
Both of these persons are, according to SmartSky, identified on the face of the petition as Israeli citizens (Wireless was identified as an Israeli company and D. Gross as an Israeli resident). Smartksy points out that the award therefore falls under the Convention and its enforcement raises a federal question. See 9 U.S.C. §§ 202, 203, & 207; 28 U.S.C. § 1331; 22-1253, Dk. 77 at 13-16.
On March 13, 2024, the Fourth Circuit denied the petition. 22-1253, Dk. 80. That raises the possibility that SmartSky might petition SCOTUS for certiorari, something that wouldn’t surprise the author given that Mr. Geyser has joined its team. If SmartSky petitions for certiorari, SCOTUS will presumably have to consider whether the current split in the circuits warrants certiorari or whether it should wait until more circuits have ruled on the issue post-Badgerow.
The author plans to submit to an ADR trade publication an article analyzing and critiquing SmartSky in some detail. For now, we briefly summarize what transpired in SmartSky and the reasons the Court gave for its ruling.
SmartSky: Facts and Procedural Posture
SmartSky was a dispute between SmartSky, a company in the wireless communications industry, and a group of related persons and entities who are (or were) also in that industry (the “DAG Defendants”). The business relationship between SmartSky and one of the DAG Defendants, Wireless Systems Solutions, LLC (“Wireless”), was set forth in several agreements, including statements of work, purchase orders, and a “Teaming Agreement.”
A dispute arose between SmartSky and Wireless and the other DAG Defendants, and SmartSky filed an action in federal district court against the DAG Defendants, invoking the district court’s federal-question subject matter jurisdiction by alleging a claim for trade secret misappropriation in violation of the Defend Trade Secrets Act, 18 U.S.C. §§ 1836, et seq. State law claims were also asserted, including for breach of contract, violation of North Carolina trade-secret-related statutory claims, and violation of North Carolina’s Unfair and Deceptive Trade Practices Act. SmartSky sought at the same time preliminary injunctive relief by motion.
About 4 days after the complaint was filed, SmartSky demanded American Arbitration Association (“AAA”) arbitration against Wireless, alleging three breach of contract claims. Wireless counterclaimed for breach of contract, breach of the duty of good faith and fair dealing, and a declaratory judgment.
The AAA selected a tripartite panel (the “Panel”), and Wireless moved the Panel to compel arbitration of all claims and counterclaims pending in the district court. Construing the terms of the Teaming Agreement’s arbitration provision, the Panel found that all claims SmartSky made against Wireless in the complaint were subject to arbitration, except for the injunctive relief claim, which it found could be brought in either arbitration or litigation. Shortly thereafter all of the DAG Defendants submitted their claims and counterclaims to the Panel to be arbitrated and agreed to be bound by the Panel’s decision.
A few days later Wireless and two individual DAG Defendants moved to stay the litigation in favor of arbitration under FAA Section 3. SmartSky opposed partially the motion for stay, but only to the extent that it would stay its motion for a preliminary injunction. One of the DAG Defendants, DAG Wireless USA, LLC (“DAG USA”) moved to dismiss the district court action because of the pending arbitration proceedings. SmartSky opposed that motion.
The district court resolved these motions by: (a) denying the motion for a preliminary injunction; (b) denying DAG USA’ motion to dismiss; and (c) granting the motion to stay litigation pending arbitration.
Wireless, however, no longer had the funds to pay its arbitration costs and thus withdrew its counterclaims in the arbitration. The Panel deemed this withdrawal to be “effectively with prejudice” because the parties had agreed arbitration would be the exclusive means of resolving their disputes. SmartSky, slip op. at 7 (quoting Panel).
The Panel held an arbitration hearing on the remaining claims during a twelve-day period, and on the final day, entered an order granting SmartSky the temporary injunction it sought.
After the parties submitted post-hearing briefs and fee applications and responses, the Panel issued an award in favor of SmartSky, which was 81 single-spaced pages in length. It awarded SmartSky damages, permanent injunctive relief, and sanctions against the DAG Defendants for arbitration-order violations.
SmartSky then filed in the stayed district court action an FAA Section 9 motion to confirm the award, and the DAG Defendants filed two FAA Section 10 motions to vacate the award. The district court confirmed the award.
The Fourth Circuit’s Decision
No Jurisdictional Anchor
The Fourth Circuit held that “the complaint filed in the district court could not, and did not, serve as a ‘jurisdictional anchor’ for the parties’ applications brought pursuant to Section 9 and 10 of the FAA.” SmartSky, slip op. at 15.
The Court began its analysis by discussing how and why Badgerow held that the “look through” rule of Vaden v. Discover Bank, 556 U.S. 49, 62-65 (2009)—that federal courts may “look beyond a[n FAA Section 4] petition to compel arbitration to the underlying controversy to determine whether subject matter jurisdiction exists[]”—did not apply to applications to confirm or vacate awards under Sections 9 and 10 of the FAA. SmartSky, slip op. at 10. The reason for the distinction lies in the textual authorization for look through jurisdiction found in Section 4’s text but absent from Section 9’s and 10’s text. See SmartSky, slip op. at 10-11. (See also Jurisdictional Anchor Post.)
The Court explained that “SmartSky’s [anchor jurisdiction] argument suggests that we treat. . . applications [to confirm or vacate an award] like motions arising out of the underlying civil action, thereby allowing the district court’s subject matter jurisdiction over the underlying action to extend to the petitions to enforce or vacate brought under the FAA.” The Court said that “Badgerow does not permit such a result.” SmartSky, slip op. at 11.
According to the Court, Section 9 or 10 applications “are not motions in a pending action; rather, they are separate actions independent of the related civil lawsuit.” The Court said nothing about how that statement might be squared with Section 6 of the FAA, which states that “[a]ny application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.” 9 U.S.C. § 6.
Those “independent actions” must, said the Court, under Badgerow be supported by a subject-matter-jurisdiction basis that is independent from the FAA. To determine whether such a basis exists, the Badgerow Court “directed its subject matter jurisdiction analysis at the matter that was before the district court—a contract enforcement action, not the employment-related law suit that was before the arbitrator. . . .” SmartSky, slip op. at 12.
And so did the SmartSky Court, which explained that, at the time they filed their Section 9 and 10 applications, the parties “were no longer litigating over their fraught business relationship – those issues and claims had been resolved by the [Panel].” SmartSky, slip op. at 12. Their “dispute focused on the enforceability of the arbitral award.” Id. “T]o find it had jurisdiction over what was in essence a contract dispute among the parties,” the Court explained, “the district court had to ‘look through’ to the civil lawsuit and determine that a federal claim existed.” SmartSky, slip op. at 12-13.
Badgerow, the Court said, foreclosed any such “look through” enquiry, and the only question was whether a basis for subject matter jurisdiction appeared from the “face of the application.” Id. (quotation and citation omitted). Because there was no diversity jurisdiction, and because neither the parties nor the court was focusing on the possibility of an independent basis of subject matter jurisdiction based on the applicability of the New York Convention, the parties’ applications revealed no independent basis for subject matter jurisdiction.
The Complaint itself, said the Court, could not serve as a “jurisdictional anchor” because it was “no longer pending before the district court because all the issues contained therein were consolidated in the arbitration.” SmartSky, slip op. at 14.
The Fourth Circuit Ruled that the Procedural Posture Differences between SmartSky and Badgerow are Irrelevant
The Court also rejected SmartSky’s argument that the procedural posture of the litigation was materially different from that in Badgerow. In Badgerow, SmartSky argued, “no underlying federal court action served as a jurisdictional anchor.” SmartSky, slip op. at 15. But the Court said that was “a distinction without a difference.” SmartSky, slip op. at 15.
SmartSky pointed out that in Badgerow there was no existing, federal lawsuit concerning an arbitral issue, no motion to compel, and no motion to stay. The petition to confirm was the first application made to the court and the matter ended up in federal court only because the petition to confirm was removed to federal court. “SmartSky essentially argue[d,]” said the Court, “that ‘freestanding’ applications under Sections 9 and 10 – like the petitioner’s application in Badgerow – are governed by different rules than Section 9 and 10 applications filed in a case, like this one, that was stayed pending arbitration under Section 3.” Slip op. at 15.
The Court, however, could “find no support for such a distinction in the case law.” Slip op. at 16. Badgerow, explained the Court, did not distinguish “between ‘freestanding” Section 9 and 10 applications” and cases where, prior to the Section 9 or 10 application, the Court granted a Section 3 stay. See slip op. at 16. “Neither Badgerow nor the plain language of the FAA[,]” the Court said, “suggests that Congress would have wanted the rules governing ‘freestanding’ Section 9 and 10 applications to differ from those applicable to applications filed in a case previously stayed.”
Contrary to SmartSky’s contentions, the Court said that Badgerow “did not leave open the question” whether freestanding applications should be treated differently from those made in Section 3 stayed actions. According to the Court, Badgerow held, without qualification, that Section 9 and 10 applications had to be supported by an independent basis for subject matter jurisdiction that appears on the application’s face. The court declined to reach a different result simply “because the district court here stayed the action pursuant to Section 3 rather than ordering arbitration under Section 4.” Slip op. at 17. It is unclear whether the Court, by its choice of these words, might have been suggesting that—had the arbitration been compelled under Section 4 and stayed under Section 3, rather than just being stayed under Section 3—the result might have been different. But we doubt it would have been, and had that been the Court’s intention, we believe the Court would have expressed it clearly.
The Court explained that “[a] district court’s subject matter jurisdiction to adjudicate applications or petitions brought under one section of the FAA does not automatically extend to applications or petitions brought under a different section of the FAA.” Slip op. at 17. Therefore, the court below “did not have or ‘retain’ subject matter jurisdiction to adjudicate the Section 9 and 10 applications because it had subject matter jurisdiction to stay the action under Section 3.” Id.
Fourth Circuit Says the U.S. Supreme Court Cases Cited by SmartSky are not Binding Precedent
The Court distinguished two U.S. Supreme Court cases that SmartSky cited in support of its jurisdiction argument, Marine Transit Co. v. Dreyfus, 284 U.S. 263 (1932) and Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193 (2000). In Marine Transit, a case that arose under the Court’s admiralty jurisdiction, the U.S. Supreme Court wrote:
And it is contended that, aside from § 8, the Act does not provide for the granting of an order for arbitration ‘in a pending suit.’ With respect to the last contention, it may be observed that § 3 provides for a stay in a pending suit until arbitration has been had in accordance with the terms of the agreement, and it would be an anomaly if the court could grant such a stay and could not direct the arbitration to proceed although the court, admittedly, could have made an order for the arbitration if no suit had been brought.
284 U.S. at 274-75.
Although the quote from Marine Transit would, for all intents and purposes, and if applied, control the outcome of this case, the Fourth Circuit did not follow it because it concluded that it was dicta, not binding precedent, and because it believed that any precedential value it might have had was superseded by Badgerow.
The reason that the Fourth Circuit concluded it was dicta was because the Marine Transit Court’s subject matter jurisdiction was based on the admiralty jurisdiction and, in the circumstances, Section 8 of the FAA (then known as the USAA or United States Arbitration Act), authorized parties in admiralty jurisdiction cases involving an alleged failure or refusal to arbitrate to commence by libel or seizure a proceeding to compel arbitration, and to authorize courts to direct arbitration and retain jurisdiction to enter judgment on a resulting arbitration award:
If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, then, notwithstanding anything herein to the contrary, the party claiming to be aggrieved may begin his proceeding hereunder by libel and seizure of the vessel or other property of the other party according to the usual course of admiralty proceedings, and the court shall then have jurisdiction to direct the parties to proceed with the arbitration and shall retain jurisdiction to enter its decree upon the award.
9 U.S.C. § 8.
Because jurisdiction over the arbitration litigation was based on admiralty jurisdiction, and in particular, on Section 8, the Fourth Circuit dismissed the discussion of Section 3 as dictum, i.e., discussion not essential to the holding of the case. Dictum does not constitute binding precedent, even though it may be persuasive authority.
SmartSky’s determination that the Section 3 discussion in Marine Transit was dictum arguably might be correct (a matter ultimately for the U.S. Supreme Court to decide), but, in any event, whether the Fourth Circuit should have followed Marine Transit’s clear, long-standing guidance as at least persuasive authority raises another question. Further, the Court in Cortez Byrd Chips characterized that guidance as “precedent” and “holding[,]” strongly suggesting that, unlike the Fourth Circuit, the Cortez Court did not consider the Marine Transit Section 3 discussion to be dictum.
Cortez, which was decided in 2000, was a U.S. Supreme Court decision that relied Marine Transit’s discussion of Section 3 to explain one of the reasons that the venue provisions of Section 9 through 11 of the FAA should be construed to be permissive, not mandatory:
A restrictive interpretation would also place § 3 and §§ 9-11 of the FAA in needless tension, which could be resolved only by disrupting existing precedent of this Court. Section 3 provides that any court in which an action ‘referable to arbitration under an agreement in writing” is pending “shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. If an arbitration were then held outside the district of that litigation, under a restrictive reading of §§ 9-11 a subsequent proceeding to confirm, modify or set aside the arbitration award could not be brought in the district of the original litigation (unless that also happened to be the chosen venue in a forum selection agreement). We have, however, previously held that the court with the power to stay the action under § 3 has the further power to confirm any ensuing arbitration award. Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 275-76 (1932) (“We do not conveive it to be open to question that, where the court has authority under the statute. . . to make an order for arbitration, the court also has authority to confirm the award or to set it aside for irregularity, fraud, ultra vires or other defect”). Habert in effect concedes this point, acknowledging that ‘the court entering a stay order under § 3 retains jurisdiction over the proceeding and does not “lose venue.”’ But that concession saving our precedent still fails to explain why Congress would have wanted to allow venue liberally where motions to confirm, vacate, or modify were brought as subsequent stages of actions antedating the arbitration, but would have wanted a different rule when arbitration was not preceded by a suit between the parties.
529 U.S. at 201-202 (emphasis added).
While Cortez’s reliance on Marine Transit was for purposes of demonstrating why interpreting Section 9’s venue provision to be permissive, the Court unquestionably considered Marine Transit to be “existing precedent” and its discussion of Section 3 to be “h[o]ld[ing],” not dictum. The SmartSky Court, however, focused instead on how Cortez “does not hold or find that a court that has subject matter jurisdiction to enter a stay retains jurisdiction to later enforce an arbitration award.” SmartSky, slip op. at 19. The Court “therefore did not interpret the Cortez Court’s discussion of the impact of a restrictive interpretation of the venue provisions in Sections 9-11 to set forth a blanket rule that a court that stays a case pursuant to Section 3 retains subject matter jurisdiction to enforce or vacate an award under Sections 9 and 10.” Slip op. at 19.
Fourth Circuit Declines to Follow Contrary, Post-Badgerow Seventh Circuit Authority and a Recent Southern District of New York Decision
The Court also distinguished Jules v. Andre Balazs Props., 2023 WL 5935626, 2023 U.S. Dist. LEXIS 161406 (S.D.N.Y. Sept. 12, 2023), which found continuing “anchor jurisdiction” to confirm an award. The Court said that Jules’s “reliance on Cortez is misplaced because, as discussed, we are of the view that its reliance on Cortez was misplaced; Badgerow is applicable even when a case was previously stayed pursuant to Section 3.” SmartSky, slip op. at 17 n.8.
The Court also refused to follow the Seventh Circuit’s decision in Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099 (7th Cir. 2023), the only other post-Badgerow Circuit Court decision to consider whether a Section-3-stayed lawsuit can serve as a jurisdictional anchor for a motion to confirm. Kinsella concluded that the answer was “yes,” but the SmartSky Court said, “[c]onsidering the clear mandates of Badgerow we cannot follow in the footsteps of our sister Circuit.” SmartSky, slip op. at 17 n.8.
Contacting the Author
If you have any questions about this article, arbitration, arbitration-law, arbitration-related litigation, or the services that the Loree Law Firm offers, then please contact the author, Philip J. Loree Jr., at (516) 941-6094 or at PJL1@LoreeLawFirm.com.
Philip J. Loree Jr. (bio, here) has more than 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related-litigation. He is licensed to practice law in New York and before various federal district courts and circuit courts of appeals.
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Tags: Admiralty, Anchor Jurisdiction, Badgerow, Byrd, Certiorari, Confirm, Continuing Jurisdiction, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Cortez, Discover Bank, Dreyfus, FAA, Federal Arbitration Act, Fourth Circuit, Geyser, Haynes Boone, Jules, Jurisdictional Anchor, Kinsella, look through, Marine Transit, Modify, New York Convention, Nonrestrictive, Restrictive, SCOTUS, Section 10, Section 11, Section 202, Section 203, Section 207, Section 3, Section 4, Section 8, Section 9, Seventh Circuit, SmartSky, stay, Stay Pending Arbitration, Subject Matter Jurisdiction, Supplemental Jurisdiction, U.S. Supreme Court, United States Arbitration Act, United States Supreme Court, USAA, Vacate, Vaden, Venue
Thanks for this review of the issue. Always appreciate your observations.
Thanks for your kind words, Peter!
Phil Loree Jr.
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