16-3342-cv Rite Aid of New York, Inc. v. 1199 SEIU United Healthcare Workers East UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 22 nd day of August, two thousand seventeen. PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges , JOAN M. AZRACK, District Judge. *

---------------------------- ---------------------------- -------------- RITE AID OF NEW YORK, INC., Petitioner-Appellant , v. No. 16-3342-cv 1199 SEIU UNITED HEAL THCARE WORKERS EAST, Respondent-Appellee

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: JEDD MEND ELSON, Littler Mendelson, P.C., Newark, New Jersey.
APPEARING FOR APPELLEE: ALLYSON L. BELOVIN, Levy Ratner, P.C., New York, New York.

* Judge Joan M. Azrack, of the United States District Court for the Eastern District of New York, sitting by designation.2 Appeal from a judgment of the United St ates District Court for the Southern District of New York (Edgardo Ramos, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on September 21, 2016, is AFFIRMED in part, and the appeal is DISMISSED in pa rt for lack of appellate jurisdiction. Plaintiff Rite Aid of New York, Inc. (“Rite Aid”) appeals from a judgment denying its petition to vacate and grantin g defendant 1199 SEIU United Healthcare Workers East’s (“the Union’s”) cross-motion to confirm an arbitral award of benefits contributions owed by Rite Aid under a 2009 collective bargaining agreement (“CBA”) and its motion for an award of attorneys’ fees. On appeal from the confirmation or vacatur of an arbitration award under Sec tion 301 of the Labor Management Relations Act (“LMRA”), see 29 U.S.C. § 185, we review a di strict court’s legal conclusions de

novo and its factual findings for clear error. See National Football League Mgmt. Council v. Nat’l Footba ll League Players Ass’n , 820 F.3d 527, 536 (2d Cir. 2016). In reviewing an award of attorneys’ fees pursu ant to a contract, we review the district court’s interpretation of the contract de novo and its decision to award attorneys’ fees for abuse of discretion. See Mid-Hudson Catskill Rural Migran t Ministry, Inc. v. Fine Host Corp. , 418 F.3d 168, 177 (2d Cir. 2005). In so doing, we assume the parties’ familiarity with the facts and record of prior proceeding s, which we reference only as necessary to explain our decision to affirm confirmation of the arbitration award and to dismiss the appeal of attorneys’ fees for lack of appellate jurisdiction.3 1. Confirmation of the Arbitration Award A federal court’s review of labor arbitra tion awards is “among the most deferential in the law.” National Football League Mgmt. Council v. Nat’l Football League Players
Ass’n , 820 F.3d at 532. We may not ourselves “weigh[] the merits of [the] grievance.” JLM Indus., Inc. v. Stolt-Nielsen SA , 387 F.3d 163, 172 (2 d Cir. 2004). “We must simply ensure that the arbitr ator was ‘even arguabl y construing or a pplying the contract and acting within the scope of his authority’ and did not ‘ign ore the plain language of the
contract.’” National Football League Mgmt. Council v. Nat’l Football League Players
Ass’n , 820 F.3d at 532 (quoting United Paperworkers Int’l Union v. Misco, Inc. , 484 U.S. 29, 38 (1987)). “[E]ven if an arbitrator ma kes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of his bargained-for authority.” Id. An arbitrator acts within that authority if the award “draws its essence from the collective bargaining agreement,” id. at 537, and is supported by at least a “barely colorable” interpretation of the contract, id. at 539, rather than the arbitrator’s “own brand of industrial justice,” id. at 537. In reviewing the dist rict court’s confirmation of the award under this highly deferential standard, we identify no error. In urging otherwise, Rite Aid first cont ends that the arbitrator misunderstood CBA provisions restricting the methodology for calculating contributions to the National Benefit Fund for Health and Human Service Employees (“NBF”). Rite Aid argues that the interchangeable use of the terms “contri bution rate” and “uniform required rate” in Sections (C) and (D) of the CB A reflected the parties’ understanding that, so long as the4 CBA remained in effect, they would use only that methodology, which imposed the same contribution rates on all employers, an d not the employer-specific “flat rate” methodology under which Rite Aid was late r required to make more substantial contributions. We are not persuaded. The arbitrator’s determination that the CB A authorized the NBF’s Trustees to alter Rite Aid’s contribution rate neither ignored the plain language of the contract nor exceeded the scope of his authority. See National Football League Mgmt. Council v. Nat’l Football League Players Ass’n , 820 F.3d at 532. The arb itrator merely construed Section (E) of the CBA, whic h stated that Rite Aid agre ed to “be bound by and to implement any changes in the Funds’ contri bution rates . . . in the amounts and on the dates . . . set by the Funds’ Trustees,” App’ x 31, as authorizing the NBF’s Trustees to alter Rite Aid’s contribution methodology. Although Rite Aid argues that Section (E) was implicitly limited by the interchangeable use of the terms “contribution rate” and “uniform required rate” in preceding secti ons, particularly in light of the Union’s bargaining history and enforcement practices, the arbitrator rejected that argument based on the broad language of Section (E). We ca nnot ourselves reweigh the merits of the grievance submitted to the arbi trator, and we cannot conclu de that his reasoning in reaching the challenged conclusion was insuffi ciently “colorable” to “withstand judicial scrutiny.” National Football League Mgmt. Council v. Nat’l Football League Players
Ass’n , 820 F.3d at 539 (internal quotation mark s omitted). Rite Aid’s citation to an NBF letter stating that changes to contribut ion rates would become effective in “your5 next [CBA],” App’x 53, warrants no different c onclusion. That same letter explains that Rite Aid would also be required to “contribut e at the new rates” imposed by the NBF if its CBA “provide[d] for contributions at the rate set by the Trustees,” id. , as the arbitrator here concluded it did. Second, Rite Aid suggests that the arb itrator may have been biased, or unduly influenced in the Union’s favor, by concerns regarding NBF solvency. See National Football League Mgmt. Council v. Nat’l Football League Players Ass’n , 820 F.3d at 548 (explaining that award may be vacated if re asonable person would “have to conclude that [the] arbitrator was partial”). Rite Aid did not raise this ar gument in the district court, and has, therefore, forfeited it. See, e.g. , Mhany Mgmt., Inc. v. County of Nassau , 819 F.3d 581, 615 (2d Cir. 2016) (re iterating that appellate court will not consider argument raised for first time on appeal). In any event, no bias is evident from the arbitrator’s observations that the NBF’s Trus tees were “fiduciaries” who were bound to “protect the viability of the Fund.” App’x 33. Third, Rite Aid argues that the arbitrato r’s construction of Section (E) “[d]eviated [f]rom” his reasoning in a different arbitration. Appellant’s Br. 37. Even if we were to agree with Rite Aid’s understanding of the othe r arbitration, the argument is defeated by precedent rejecting the notion that “an arbitrator has a duty to follow arbitral precedent,” or that “failure to do so is reason to vacate” an arbitration award. Wackenhut Corp. v. Amalgamated Local 515 , 126 F.3d 29, 32 (2d Cir. 1997).6 Fourth, Rite Aid urges vacatur because it was “perplexed as to whether it was litigating with the Union or the NBF,” as “the same law firm” represented both entities. Appellant’s Br. 38–39. The argument is unc onvincing because, as the arbitrator observed, the “only parties to this dispute [w ere] the Union and Rite Aid notwithstanding Rite Aid’s assertion.” App’x 21 n.6. In any event, Rite Aid offers no reason why its purported confusion warrants vacatur. Accordingly, Rite Aid’s challenges to confirmation fail on the merits. 1 2. Motion for Attorneys’ Fees Rite Aid challenges so much of the judgm ent as concluded that the Union should be “awarded reasonable attorney ’s fees” pursuant to a contra ctual fee-shifting provision in the CBA. App’x 80. We may not revi ew that determinati on here because the district court held in abeyance its computati on of those fees pending the outcome of this appeal. Although the “pendency of a rulin g on [the] award for fees and costs does not prevent . . . the merits judgment from becoming final for purposes of appeal,” Ray Haluch Gravel Co. v. Cent . Pension Fund of Int’l Un ion of Operating Eng’rs & Participating Emp’rs , 134 S. Ct. 773, 7 77 (2014) (emphasis added), “a non-quantified award of attorneys’ fees and costs is not appe alable until the amount of the fees has been set by the district court,” Berlin v. Renaissance Rental Partners, LLC , 723 F.3d 119, 128

1 We need not address Rite Aid’s passing asser tion that the district court erred in denying as moot its motion to strike portions of the Union’s briefing, as to which it has offered no supporting arguments. See Gross v. Rell , 585 F.3d 72, 95 (2d Cir. 2009) (“Merely mentioning the relevant issue in an opening brief is not en ough; issues not sufficiently argued . . . will not be considered on appeal.” (internal quotation marks and alterations omitted)).7 (2d Cir. 2013) (alteration and internal quota tion marks omitted). Nor did the district court compute the fees owed to the Union after the filing of the notice of appeal so as to provide an “appealable final order regarding fees and costs” that would be “ripe for review.” Id. (internal quotation marks omitted) . We therefore lack appellate jurisdiction to address Rite Aid’s challe nge to the unquantified fees award. See O & G Indus., Inc. v. Nat’l R.R. Passenger Corp. , 537 F.3d 153, 167 (2d Cir. 2008). 3. Conclusion We have considered Rite Aid’s other arguments and conclude that they are without merit. Accordingly, we AFFIRM so much of the district court’s judgment as denied Rite Aid’s petition to vacate and gran ted the Union’s cross-motion to confirm the disputed arbitration award, and we DISMISS for lack of jurisdiction Rite Aid’s appeal from the grant of attorneys’ fees.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court