explaining that current three-judge panel was “bound” by prior ease interpreting state law that was decided by a three-judge Ninth Circuit panel, even though it was doubtful that the prior case “was correctly decided”
How later courts described this case
- explaining that current three-judge panel was “bound” by prior ease interpreting state law that was decided by a three-judge Ninth Circuit panel, even though it was doubtful that the prior case “was correctly decided”
- finding that a question of law was preserved where parties had fully briefed the issue to the court, even though one party made an error of legal interpretation
- applying Oregon state law definition and declining to treat an “appraisal” as an *1079 arbitration
- “The FAA governs any written provision in a ‘contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract.’ ”
Written by the judges who cited it.
The opinion
TASHIMA, Circuit Judge,
with whom LAY, Circuit Judge, * joins, concurring:
I concur fully in Judge McKeown’s majority opinion. I write separately to express my doubts as to whether Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579 (9th Cir.1987), by which we are bound and which governs the disposition of this case, was correctly decided.
By enacting the Federal Arbitration Act (FAA), “Congress declared a national policy favoring arbitration.” Southland Corp. v. Keating, 465 U.S. 1, 10 , 104 S.Ct. 852 , 79 L.Ed.2d 1 (1984) (emphasis added). See also Craft v. Campbell Soup Co., 177 F.3d 1083, 1090 (9th Cir.1999) (discussing the Act’s legislative history and recognizing that “the FAA was part of an effort to gain uniformity in the application of agreements to arbitrate sales and commercial disputes”) (emphasis added). As the majority opinion correctly concludes, Wasyl accepted state law as binding and as supplying the meaning of the term “arbitration” in the FAA. See Wasyl, 813 F.2d at 1582 .
It seems counter-intuitive to look to state law to defíne a term in a federal statute on a subject as to which Congress has declared the need for national uniformity. Yet, that is exactly what Wasyl requires. This case illustrates the result of the Wasyl rule — a patchwork in which the FAA will mean one thing in one state and something else in another. In California, an “appraisal” is an “arbitration” under the FAA, but in Oregon it is not. This does not appear to me to be the way in which Congress intended that the FAA be interpreted. It is one thing to look to state law as a guide in fashioning federal common law; it is quite another to accept it as binding in interpreting the meaning of federal law.
I believe that it is our obligation independently to define “arbitration” under the FAA as best we can, as a matter of federal law. See NLRB v. Natural Gas Util. Dist., 402 U.S. 600, 603 , 91 S.Ct. 1746 , 29 L.Ed.2d 206 (1971) (“In the absence of a plain indication to the contrary, ... it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law.”) (internal quotation marks and citations omitted). I recognize, however, that, as a three judge panel, we are bound by Wasyl. I suggest that, at some point in some case, the court , ought to rethink the patchwork created by Wasyl.
The Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.