IN THE SUPREME COURT OF THE STATE OF WASHINGTON

EVETTE BURGESS, ) 

) No. 98083-7 

Petitioner, ) 

) 

v. ) En Banc

) 

LITHIA MOTORS, INC.; BMW OF ) 

SPOKANE d/b/a CAMP AUTOMOTIVE, ) 

INC. d/b/a BMW OF SPOKANE, ) 

) 

Respondents. ) 

) Filed 

JOHNSON, J.—This case involves the availability of judicial review during 

ongoing contractual arbitration proceedings conducted under the Federal Arbitration 

Act (FAA), 9 U.S.C. §§ 1-16. Evette Burgess and Lithia Motors entered into 

arbitration to resolve an employment dispute. During arbitration proceedings, 

Burgess filed a motion with the court to terminate arbitration, alleging that Lithia 

and the arbitrator breached the arbitration agreement. The superior court denied 

Burgess’s motion, citing a lack of jurisdiction, and certified the matter for direct 

review, which we granted. We affirm the superior court’s order. Under the FAA, we 

: September 3, 2020

FILE 

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON 

SEPTEMBER 3, 2020

THIS OPINION WAS FILED 

FOR RECORD AT 8 A.M. ON

SEPTEMBER 3, 2020

SUSAN L. CARLSON 

SUPREME COURT CLERK 
Burgess v. Lithia Motors, Inc., No. 98083-7

2

hold that judicial review is limited to deciding gateway disputes, which concern 

enforceability of the arbitration clause, and addressing the award after arbitration.

FACTS

In January 2018, Burgess filed suit in Spokane County Superior Court against

Lithia based on claims of discrimination, harassment, and wrongful termination. 

Burgess initiated discovery under the court’s supervision. In early February, Lithia 

requested that the parties move to arbitration per the terms of an arbitration clause

that Burgess had signed as a condition to employment. Neither party challenged the 

validity of the arbitration clause.1

In July 2018, the parties agreed to arbitration. The parties entered into 

arbitration independently, not by court order, per the terms of the earlier arbitration 

clause. The arbitration provision stated, “The claims outlined shall be submitted to 

and determined exclusively by binding arbitration under the Federal Arbitration Act, 

in conformity with the Federal Rules of Civil Procedure [FRCP] and Rules of 

Evidence [FRE].” Clerk’s Papers (CP) at 293. Burgess confirmed with the arbitrator 

that she “agree[d] to the FRCP and FRE requirements.” CP at 349. 

During arbitration, Burgess claims that Lithia failed to respond in a timely 

manner to interrogatories. At one point, Lithia provided general objections in 

 1 The record contains written communications between the two parties where Burgess 

indicates some portions of the arbitration agreement may be unconscionable. However, no formal 

challenges to the enforceability of the arbitration clause were presented to the court.
Burgess v. Lithia Motors, Inc., No. 98083-7

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response to Burgess’s first interrogatories and requests for production. Lithia largely 

asserted that the discovery requests were privileged and conditioned production on 

“a mutually agreed protective order” and noted that a privilege log would be 

forthcoming. CP at 120. 

In August 2018, Burgess filed a motion with the arbitrator to compel Lithia’s

answers to the first set of discovery. Citing FRCP 34, Burgess alleged that Lithia’s 

responses were untimely, inadequate, and made in bad faith. She also argued that 

Lithia waived its right to a privilege log. The arbitrator denied Burgess’s motions. 

He found that Lithia, although untimely, provided answers to the first set of 

discovery, and he ordered a conference to resolve the bad faith allegations. The 

arbitrator also found that Lithia did not waive its right to seek a protective order and 

directed the parties to confer. 

After this ruling, Burgess filed in superior court “Plaintiff’s Motion to Vacate 

Arbitrator’s Order Denying Discovery, Terminate Arbitration, and Issue a Case 

Scheduling Order.” CP at 48. Burgess alleged that Lithia breached the arbitration 

agreement by failing to comply with discovery deadlines under FRCP 34 and the 

objection requirements of FRCP 33(b)(4). She also argued that the arbitrator’s ruling 

constituted a breach of the agreement by failing to enforce the FRCP.

The superior court denied Burgess’s motion, ruling that

2. The arbitration clause in this case is enforceable. 
Burgess v. Lithia Motors, Inc., No. 98083-7

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. . . . 

5. This superior court is therefore prohibited from addressing 

Plaintiff’s argument as to alleged breaches by Lithia and the 

Arbitrator in the course of arbitration as it does not have jurisdiction 

to do so. 

CP at 612. The court granted Burgess’s request to certify the matter for review under 

RAP 2.3(b)(4). The court also certified the following question: 

Does the superior court have jurisdiction to address an 

employee’s contractual breach argument based upon acts alleged in 

the course of binding arbitration, or is the superior court’s jurisdiction 

in a contractual arbitration limited to issues occurring before and 

after—but not during—the proceeding. Specifically, is the superior 

court’s jurisdiction limited to ruling on whether there is an 

enforceable arbitration clause at the inception of arbitration and 

addressing the arbitration award at its conclusion?

CP at 613. The Court of Appeals granted discretionary review and certified the 

case to this court pursuant to RCW 2.06.030 and RAP 4.4. 

ANALYSIS

The parties elected to resolve this dispute through binding arbitration under

the FAA. We are asked whether and to what extent the FAA authorizes a court to 

review a challenge to the arbitration agreement once the claims have been submitted 

to arbitration. Burgess contends that section 2 of the FAA authorizes the court to 

resolve a breach of the arbitration agreement challenge during ongoing arbitration

proceedings. Lithia argues that the FAA limits court involvement to the “bookends” 

of arbitration: initial enforceability and review of the final arbitration award.
Burgess v. Lithia Motors, Inc., No. 98083-7

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The majority of federal circuits that have reviewed this issue determined that 

the FAA generally restricts judicial involvement to the bookends of arbitration and 

precludes any judicial intervention once arbitration begins. In re Sussex, 781 F.3d 

1065, 1073 (9th Cir. 2015); see also Savers Prop. & Cas. Ins. Co. v. Nat’l Union 

Fire Ins. Co. of Pittsburg, PA, 748 F.3d 708, 716 (6th Cir. 2014) (“Parties to an 

arbitration generally may not challenge the fairness of the proceedings or the 

partiality of the arbitrators until the conclusion of the arbitration and the rendition of 

a final award.”); Blue Cross Blue Shield of Mass., Inc. v. BCS Ins. Co., 671 F.3d 

635, 638 (7th Cir. 2011) (“Review comes at the beginning or the end, but not in the 

middle.”); Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 476, 487 

(5th Cir. 2002) (“The FAA does not provide therefore for any court intervention 

prior to issuance of an arbitral award beyond the determination as to whether an 

agreement to arbitrate exists and enforcement of that agreement by compelled 

arbitration of claims that fall within the scope of the agreement even after the court 

determines some default has occurred.”); Michaels v. Mariforum Shipping, S.A., 624 

F.2d 411, 414 (2nd Cir. 1980).

The interplay between judicial and arbitration proceedings under the FAA are 

defined by several statutory provisions. Section 2 of the FAA states that a written 

agreement to submit an existing controversy to arbitration “shall be valid, 

irrevocable, and enforceable, save upon such grounds as exist at law or in equity for 
Burgess v. Lithia Motors, Inc., No. 98083-7

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the revocation of any contract.” 9 U.S.C. § 2. Section 4 of the FAA directs that 

“upon being satisfied that the making of the agreement for arbitration or the failure 

to comply therewith is not in issue, the court shall make an order directing the 

parties to proceed to arbitration in accordance with the terms of the agreement.” 9 

U.S.C. § 4. Section 3 of the FAA authorizes courts to “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. Section 9 of the FAA states that “any party to the arbitration may apply 

to the court so specified for an order confirming the award, and thereupon the court 

must grant such an order unless the award is vacated, modified, or corrected.” 9 

U.S.C. § 9. Sections 10 and 11 of the FAA specify the limited grounds for which a 

court may vacate, modify, or correct an arbitration award. Taken together, these 

provisions indicate that arbitration is conducted primarily with the arbitrator except 

for the circumstances discussed above, where a court’s authority is expressly

delineated.

Under a similar set of facts, the Sixth Circuit concluded that “[b]ased upon the 

text, structure, and purpose of the FAA, which all foster a speedy and less formal 

method of dispute resolution,” courts may not entertain an interlocutory challenge to 

an ongoing arbitration proceeding.2 Savers, 748 F.3d at 716. In Savers, the parties 

 2 The Savers court analyzed the dispute under the Michigan Arbitration Act, but noted that 

the Michigan laws were “‘almost identical to the FAA in all relevant respects.’” Savers, 748 F.3d 
Burgess v. Lithia Motors, Inc., No. 98083-7

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completed an arbitration hearing and the arbitration panel issued an “interim final 

award” that resolved liability issues but did not calculate or issue a final damages 

award. One of the parties requested that the court stay the arbitration proceedings

and challenged the fundamental fairness of the proceeding, including whether the 

arbitrators exceeded their authority, displayed impartiality, and violated ex parte 

prohibitions. The trial court framed the issue as a breach of contract dispute and 

ruled on the matter, enjoining the ongoing arbitration proceedings. 

The Savers court determined that the language of the FAA contemplated two 

stages where courts are authorized to review disputes regarding arbitration 

proceedings. First, sections 2, 3, and 4 of the FAA authorize courts to decide 

“gateway disputes” regarding the validity or applicability of arbitration agreements. 

Section 2 of the FAA “preserves ‘generally applicable contract defenses’ to 

arbitration agreements” and allows courts to rescind or invalidate arbitration 

contracts where the contract contains an underlying defect. Savers, 748 F.3d at 719; 

see 9 U.S.C. § 2. Once the court determines a valid arbitration agreement exists, the 

court must enforce it. The following sections, sections 3 and 4 of the FAA, authorize 

courts to stay trial and order the parties to proceed with arbitration per the terms of 

their binding agreement. 9 U.S.C. §§ 3-4. 

 

at 716 (quoting Uhl v. Komatsu Forklift Co., 512 F.3d 294, 303 (6th Cir. 2008)). Accordingly, the 

court relied on cases applying the FAA and resolved the case by interpreting the FAA.
Burgess v. Lithia Motors, Inc., No. 98083-7

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Second, at the conclusion of arbitration proceedings, courts may review the 

final arbitration award. Section 9 of the FAA allows parties to seek an order from the 

court to confirm the arbitration award. Sections 10 and 11 of the FAA define the 

limited circumstances where courts may vacate, modify, or correct an arbitration 

award. 

In evaluating these provisions, the Savers court found it significant that the 

FAA is silent regarding judicial review between gateway disputes and review of the 

final award. It recognized that other circuit courts have interpreted this silence as 

precluding interlocutory review. Savers, 748 F.3d at 717-18 (citing Blue Cross, 671 

F.3d at 638; Gulf, 304 F.3d at 488; Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 

941 (4th Cir. 1999); LaPrade v. Kidder Peabody & Co., 330 U.S. App. D.C. 386, 

146 F.3d 899, 903 (1988); Michaels, 624 F.2d at 414). The Savers court concluded

that under the FAA’s framework, the trial court is not authorized to intervene in the 

ongoing arbitration proceedings between resolution of gateway disputes and review 

of the final arbitration award. We agree.

Burgess argues that judicial relief for a breach of the agreement is warranted 

under the language of section 2 of the FAA. Section 2 of the FAA states, “[A]n 

agreement in writing to submit to arbitration an existing controversy arising out of 

such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, 

save upon such grounds as exist at law or in equity for the revocation of any 
Burgess v. Lithia Motors, Inc., No. 98083-7

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contract.” 9 U.S.C. § 2. Burgess contends that section 2 of the FAA authorizes midarbitration breach challenges because rescission is an equitable remedy for a 

material breach of contract. This argument misinterprets the import of section 2 of 

the FAA. 

The United States Supreme Court has recognized that “[s]ection 2 is a 

congressional declaration of a liberal federal policy favoring arbitration agreements, 

notwithstanding any state substantive or procedural policies to the contrary. The 

effect of the section is to create a body of federal substantive law of arbitrability.”

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 

927, 74 L. Ed. 2d 765 (1983). Under this provision, courts may determine “gateway 

disputes” where the question is whether the parties have submitted a particular 

dispute to arbitration. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 

S. Ct. 588, 154 L. Ed. 2d 491 (2002). Common gateway disputes concern 

enforceability of the agreement, such as unconscionability challenges or disputes 

over which parties are bound by the agreement. These are all questions for the judge.

Burgess cites no case where a court provided relief, let alone rescission, once 

arbitration commenced. The Savers court rejected the notion that section 2 of the 

FAA authorizes interlocutory judicial review during arbitration proceedings. The 

court noted that section 2 exists to place arbitration agreements on the same footing 

as any other contract, subjecting the agreements “to rescission or invalidation if 
Burgess v. Lithia Motors, Inc., No. 98083-7

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there is a defect in the underlying contract.” Savers, 748 F.3d at 719. However, 

“[n]othing in the text or history of the FAA suggests that § 2 was intended to 

displace § 10’s limitation on judicial review of non-final awards.” Savers, 748 F.3d 

at 720.

Cases do exist where courts ruled on rescission challenges, but such cases 

involve rulings made before arbitration commenced. Burgess relies on Hooters, 173 

F.3d at 938-41, to establish that courts may rescind arbitration agreements during 

arbitration. In Hooters, the Fourth Circuit permitted judicial inquiry and rescinded 

the arbitration agreement. In that case, a party materially breached the agreement by 

promulgating unfair and one-sided rules for arbitration when it had a contractual 

obligation to draft rules in good faith. The court clarified, “[W]e only reach the 

content of the arbitration rules because their promulgation was the duty of one party 

under the contract. The material breach of this duty warranting rescission is an issue 

of substantive arbitrability and thus is reviewable before arbitration.” Hooters, 173 

F.3d at 938-41 (emphasis added) (resolving the challenge on review of a motion to 

compel arbitration). The outcome in Hooters is inapplicable here because Burgess is 

challenging the agreement during arbitration.

The Ninth Circuit also reviewed a breach of contract challenge under section 

2 of the FAA where an employer initially refused to arbitrate per the terms of its 

own arbitration agreement, forcing the employee to file a lawsuit. Brown v. 
Burgess v. Lithia Motors, Inc., No. 98083-7

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Dillard’s, Inc., 430 F.3d 1004, 1010 (9th Cir. 2005). There, the employer moved to 

compel arbitration, which the court denied. The court held that the employer’s 

refusal to arbitrate constituted a breach of the agreement, rendering the agreement 

unenforceable. Brown also does not control because in that case, the breach of 

contract challenge was raised before—not during—arbitration. Accordingly, we hold 

section 2 of the FAA does not authorize the court to resolve a breach of the 

arbitration agreement challenge during ongoing arbitration.

Further, limiting judicial involvement during ongoing arbitration proceedings 

is consistent with the underlying intent of the FAA. Arbitration agreements are 

contracts that establish the parties’ agreement to resolve their dispute in arbitration, 

instead of in court. In AT&T Mobility LLC v. Concepcion, the United States 

Supreme Court recognized that the “‘principal purpose’ of the FAA is to ‘ensur[e] 

that private arbitration agreements are enforced according to their terms.’” 563 U.S. 

333, 344, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011) (alteration in original) (quoting 

Volt Info. Scis., Inc. v. Bd. of Trustees, 489 U.S. 468, 478, 109 S. Ct. 1248, 103 L. 

Ed. 2d 488 (1989)). The FAA provisions afford parties discretion to design 

arbitration processes “to allow for efficient, streamlined procedures tailored to the 

type of dispute.” AT&T, 563 U.S. at 344. “If parties could take ‘full-bore legal and 

evidentiary appeals,’ arbitration would become ‘merely a prelude to a more 

cumbersome and time-consuming judicial review process.’” Oxford Health Plans 
Burgess v. Lithia Motors, Inc., No. 98083-7 

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LLC v. Sutter, 569 U.S. 564, 568-69, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013) 

(quoting Hall Street Assocs. v. Mattel, Inc., 552 U.S. 576, 588, 128 S. Ct. 1396, 170 

L. Ed. 2d 254 (2008)). Various circuit courts have opined that permitting

interlocutory judicial review prior to the conclusion of arbitration would undermine

the benefits of arbitration. See Savers, 748 F.3d at 718 (citing the Seventh, Fifth, and 

Second Circuits). If judicial review were allowed, the trial court would sit in an 

appellate capacity regarding any arbitral decision, resulting in significant delays and 

increased costs for parties.

Once arbitration begins under the FAA, the court’s authority to resolve the 

dispute is transferred to the arbitrator. Judicial intervention is generally precluded 

during arbitration proceedings. The language, framework, and underlying intent 

behind the FAA confirm that generally courts are limited to ruling on gateway 

disputes, such as whether the arbitration clause is enforceable, and addressing the 

award at the conclusion of arbitration. 

This case falls squarely within the circumstances where judicial review is 

precluded under the FAA. Burgess and Lithia are engaged in ongoing arbitration. 

Neither party challenged the validity of the arbitration agreement beforehand and the 

final arbitration award has not yet been issued. The court may not intervene and 

rescind the arbitration agreement when the case is between those two stages. 

Burgess essentially challenges the arbitrator’s interlocutory discovery ruling and 
Burgess v. Lithia Motors, Inc., No. 98083-7

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asks us to determine whether the ruling comports with the FRCP. This is the very 

type of review that the FAA aims to prevent. Because Burgess seeks to terminate 

and rescind the ongoing arbitration based on those grounds and an alleged breach of 

the arbitration agreement that occurred during arbitration, the superior court is 

precluded from reviewing her challenge. 

CONCLUSION

We affirm the superior court’s order, denying Burgess’s motion to terminate 

arbitration. When the parties elect to resolve their dispute through arbitration under 

the FAA, courts are generally limited to determining enforceability disputes before 

arbitration begins and reviewing arbitration awards when arbitration is complete. 

The trial court properly determined that it was without authority to resolve Burgess’s

challenge. We affirm and remand for further proceedings consistent with this 

opinion.