2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-2014

David Opalinski v. Robert Half Intl Inc

Precedential or Non-Precedential: Precedential

Docket No. 12-4444

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 12-4444

________________

DAVID OPALINSKI;

JAMES MCCABE, on behalf of themselves

and all others similarly situated

v.

ROBERT HALF INTERNATIONAL INC;

ROBERT HALF CORPORATION;

Appellants

________________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-10-cv-02069)

District Judge: Honorable Faith S. Hochberg

________________

Argued April 7, 2014

Before: AMBRO, JORDAN, and ROTH, Circuit Judges

(Opinion filed: July 30, 2014)
2

Richard L. Alfred, Esquire (Argued)

Patrick J. Bannon, III, Esquire

Carla J. Easton, Esquire

James M. Hlawek, Esquire

Seyfarth Shaw LLP

Two Seaport Lane

World Trade Center East, Suite 300

Boston, MA 02210

Christopher H. Lowe, Esquire

Seyfarth Shaw LLP

620 Eighth Avenue

New York, NY 10018

James M. Harris, Esquire

Seyfarth Shaw LLP

2029 Century Park East, Suite 3500

Los Angeles, CA 90067

Adam N. Saravay, Esquire

McCarter & English

100 Mulberry Street

Four Gateway Center, 14th Floor

Newark, NJ 07102

Alexander Wood, Esquire

Paul Hastings

75 East 55th Street

New York, NY 10022

Counsel for Appellants
3

Shannon Liss-Riordan, Esquire (Argued)

Lichten & Liss-Riordan, P.C.

100 Cambridge Street, 20th Floor

Boston, MA 02114

Anthony L. Marchetti, Jr., Esquire

Marchetti Law, P.C.

900 North Kings Highway

Cherry Hill, NJ 08034

Counsel for Appellees

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

We consider whether a district court, rather than an 

arbitrator, should decide if an agreement to arbitrate disputes 

between the parties to that agreement also authorizes 

classwide arbitration. Because of the fundamental differences 

between classwide and individual arbitration, and the 

consequences of proceeding with one rather than the other, 

we hold that the availability of classwide arbitration is a 

substantive “question of arbitrability” to be decided by a court

absent clear agreement otherwise. 

I. Background

Plaintiffs David Opalinski and James McCabe

(sometimes collectively referred to as “Appellees”), former 

employees of Robert Half International, Inc. (“RHI”), bring 

this action on behalf of themselves and other individuals, 
4

alleging that RHI failed to pay them overtime and improperly 

classified them as overtime-exempt employees in violation of 

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et 

seq. Both McCabe and Opalinski signed employment 

agreements that contained arbitration provisions. They 

provide that “[a]ny dispute or claim arising out of or relating 

to Employee’s employment, termination of employment or 

any provision of this Agreement” shall be submitted to 

arbitration. Neither agreement mentions classwide

arbitration.

RHI moved to compel arbitration of Opalinski and 

McCabe’s claims on an individual basis. In October 2011, 

the District Court granted the motion in part, thus compelling 

arbitration but holding that the propriety of individual (also 

known as bilateral) versus classwide arbitration was for the 

arbitrator to decide (the “October 2011 Order”). The Court 

subsequently entered an order terminating the case. Rather 

than immediately appealing the October 2011 Order, RHI 

proceeded with the arbitration process and did not return to 

the District Court until the arbitrator issued a partial award 

and ruled that the employment agreements permitted 

classwide arbitration. RHI then moved the District Court to 

vacate the arbitrator’s partial award. The District Court 

denied the motion to vacate (the “December 2012 Order”).

RHI appeals the December 2012 Order. The crux of 

the appeal, however, is not the underlying issue whether the 

employment agreements between the parties permit classwide 

as opposed to only bilateral arbitration. Rather, the question 

before us is who decides – that is, should the availability of 

classwide arbitration have been decided by the arbitrator or 

by the District Court?
5

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over this action per

28 U.S.C. § 1331 because Plaintiffs brought claims under the 

FLSA. We have jurisdiction under 9 U.S.C. § 16(a)(1)(D) 

(“An appeal may be taken from . . . an order . . . confirming 

or denying confirmation of an award or partial award[.]”). 

Appellees argue that this appeal is untimely because 

although RHI styles it as one based on the District Court’s 

December 2012 Order denying its motion to vacate, the 

appeal actually challenges only the October 2011 Order’s

holding that the availability of classwide arbitration is a 

question for the arbitrator. The October 2011 Order, 

Appellees contend, was a final decision that was immediately 

appealable on an interlocutory basis, and RHI’s attempt now 

to appeal the merits of that decision is untimely. See Fed. R. 

App. P. 4(a)(1)(A) (party seeking to appeal a final decision 

must file notice of appeal within 30 days of entry of the 

judgment or order appealed from). 

The Federal Arbitration Act “preserves immediate 

appeal of any ‘final decision with respect to an arbitration,’ . . 

. whether the decision is favorable or hostile to arbitration.” 

Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86 

(2000) (quoting 9 U.S.C. § 16(a)(3)). A “final decision” is 

one that “ends the litigation on the merits and leaves nothing 

more for the court to do but execute the judgment.” Id.

(quotation marks and citation omitted). Here the October 

2011 Order was not a final decision because it effected only a 

non-final, administrative closure, and explicitly 

acknowledged the potential need for further litigation before 

the District Court. Freeman v. Pittsburgh Glass Works, LLC, 

709 F.3d 240, 247 (3d Cir. 2013) (“administrative closings 

are not final orders”). RHI timely appealed the District 
6

Court’s final decision – the December 2012 Order – and we 

have jurisdiction to consider this appeal. 

“On appeal from a district court’s ruling on a motion 

to confirm or vacate an arbitration award, we review its legal 

conclusions de novo and its factual findings for clear error.” 

Sutter v. Oxford Health Plans LLC, 675 F.3d 215, 219 (3d 

Cir. 2012), aff’d, 133 S. Ct. 2064 (2013). 

III. Discussion

We decide first what arguments we may properly 

consider on this appeal. Appellees contend that because RHI 

did not argue in its Motion to Vacate that the District Court 

(and not the arbitrator) should have determined the 

permissibility of classwide arbitration, it has waived its right 

to raise that argument in this appeal. However, waiver, which 

is intended to protect litigants from unfair surprise and 

prevent district courts from being reversed on grounds that 

were never argued before them, does not apply in this 

instance. Appellees were well aware of RHI’s argument that 

the District Court, not the arbitrator, should decide the 

availability of classwide arbitration: the Court expressly 

addressed the issue in its October 2011 Order, RHI objected 

to the arbitrator’s determination whether classwide arbitration 

was permissible throughout the arbitration proceedings, and 

RHI did flag the “who decides” issue in its Motion to Vacate 

by reminding the Court that “from the outset [RHI] has 

maintained that the class action issue is for this Court to 

decide.” Thus, our addressing the issue on appeal prejudices 

neither Appellees nor the District Court.

We proceed to the merits of the case and consider 

whether, in the context of an otherwise silent contract, the 

availability of classwide arbitration is to be decided by a court 

rather than an arbitrator. The analysis is twofold. We decide 
7

first whether the availability of classwide arbitration is a 

“question of arbitrability.” See Howsam v. Dean Witter 

Reynolds, Inc., 537 U.S. 79, 83 (2002) (internal quotation 

marks and citation omitted). If yes, it is presumed that the 

issue is “for judicial determination unless the parties clearly 

and unmistakably provide otherwise.” Id. (internal quotation 

marks, citations, and alteration omitted). If the availability of 

classwide arbitration is not a “question of arbitrability,” it is 

presumptively for the arbitrator to resolve. See First Options 

of Chi., Inc. v. Kaplan, 514 U.S. 938, 944-45 (1994).

A. Is the availability of classwide arbitration a “question 

of arbitrability”?

“[A]rbitration is a matter of contract and a party cannot 

be required to submit to arbitration any dispute which he has 

not agreed so to submit.” Howsam, 537 U.S. at 83 (internal 

quotation marks and citation omitted). While federal policy 

favors arbitration agreements, an arbitrator has the power to

decide an issue only if the parties have authorized the 

arbitrator to do so. Because parties frequently disagree 

whether a particular dispute is arbitrable, courts play a limited 

threshold role in determining “whether the parties have 

submitted a particular dispute to arbitration, i.e., the ‘question 

of arbitrability[.]’” Id. at 83 (emphasis in original). 

“Questions of arbitrability” are limited to a narrow 

range of gateway issues. They may include, for example, 

“whether the parties are bound by a given arbitration clause”

or “whether an arbitration clause in a concededly binding 

contract applies to a particular type of controversy.” Id. at 84. 

On the other hand, questions that the parties would likely 

expect the arbitrator to decide are not “questions of 

arbitrability.” Id. Those include “‘procedural’ questions that 

grow out of the dispute and bear on its final disposition[,]” as 
8

well as allegations of waiver, delay, or similar defenses to 

arbitrability. Id.

The Supreme Court has not yet decided whether the 

availability of class arbitration is a “question of arbitrability.” 

In Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 

(2003), a plurality of the Court concluded that the availability 

of classwide arbitration was not a question of arbitrability 

because “it concerns neither the validity of the arbitration 

clause nor its applicability to the underlying dispute between 

the parties . . . [, but only] contract interpretation and 

arbitration procedures.” Id. at 451, 452-53. 

Subsequent Supreme Court decisions, however, cast 

doubt on the Bazzle plurality’s decision. In Stolt-Nielsen S.A. 

v. AnimalFeeds International Corp., 559 U.S. 662 (2010), the 

Court specifically noted that “only the plurality” in Bazzle

decided that an arbitrator should determine whether a contract 

permits classwide arbitration and Bazzle is accordingly not 

binding on this point. Id. at 680. And in Oxford Health 

Plans LLC v. Sutter, 133 S. Ct. 2064 (2013), the Court again 

stated that it “has not yet decided whether the availability of 

class arbitration” is for a court or for an arbitrator to resolve. 

Id. at 2069 n.2. 

Our Court has also not decided whether the availability 

of classwide arbitration is a question of arbitrability. We 

briefly addressed the issue in Quilloin v. Tenett HealthSys. 

Philadelphia, Inc., 673 F.3d 221 (3d Cir. 2012), where we 

concluded that classwide arbitration was not a question of 

arbitrability. Id. at 232 (“Silence regarding class arbitration 

generally indicates a prohibition against class arbitration, but 

the actual determination as to whether class action is 

prohibited is a question of interpretation and procedure for the 

arbitrator.”). However, this single sentence addressing “who 

decides” is a dictum because at the district court level the 
9

parties in Quilloin had already agreed that the arbitrator 

should be the one to determine whether the contract provided 

for class action arbitration. See Quilloin v. Tenett HealthSys. 

Philadelphia, Inc., 763 F. Supp. 2d 707, 727 n.22 (E.D. Pa. 

2011). Additionally, Quilloin relied solely on the Supreme 

Court’s decision in Stolt-Nielsen for its conclusion that the 

availability of class arbitration is a question of procedure for 

the arbitrator to decide. See 673 F.3d at 232. This reliance 

falls short: not only does Stolt-Nielsen expressly state that the 

Supreme Court has not yet resolved the “who decides” issue 

but, as explained below, the opinion also indicates that the 

availability of classwide arbitration is a question of substance 

rather than procedure. Thus, whether the availability of 

classwide arbitration is a “question of arbitrability” to be 

presumptively decided by a court remains an open question. 

Our Court has explained that questions of arbitrability 

generally fall into two categories – (1) when the parties 

dispute “whether [they] have a valid arbitration agreement at 

all” (whose claims the arbitrator may adjudicate); and (2)

“when the parties are in dispute as to whether a concededly 

binding arbitration clause applies to a certain type of 

controversy” (what types of controversies the arbitrator may 

decide). Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 178 

(3d Cir. 2010) (en banc) (internal quotation marks and 

citation omitted). The crucial consideration is the expectation 

of the contracting parties: We do not “forc[e] parties to 

arbitrate a matter that they may well not have agreed to 

arbitrate.” Howsam, 537 U.S. at 83. We now hold that 

whether an agreement provides for classwide arbitration is a 

“question of arbitrability” to be decided by the District Court. 
10

1. The availability of class arbitration implicates 

whose claims the arbitrator may resolve.

The Supreme Court has long recognized that a district 

court must determine whose claims an arbitrator is authorized 

to decide. In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 

543 (1964), the defending company claimed it was not bound 

by the arbitration provisions of an agreement signed by a 

company with which it had merged. Id. at 546-47. The Court 

stated that there was “no doubt” that the issue “whether or not 

the company was bound to arbitrate, as well as what issues it 

must arbitrate, is a matter to be determined by the Court . . . .” 

Id. at 546-47 (internal quotation marks and citations omitted). 

Similarly, in First Options individual business owners argued 

that they were not personally bound by an arbitration 

agreement they had signed on behalf of their wholly owned 

company. See 514 U.S. at 941-42. The Court again 

concluded that this was a “question of arbitrability” to be 

presumptively determined by a court absent clear contractual 

language to the contrary. Id. at 946-47. Our Circuit has also 

held repeatedly that whose claims an arbitrator may decide is 

an issue for the courts. See, e.g., Allstate Settlement Corp. v. 

Rapid Settlements, Ltd., 559 F.3d 164, 169 (3d Cir. 2009) 

(“[w]hether the arbitrator’s award binds [a third-party] is a 

question that the court must decide”); Sandvik AB v. Advent 

Int’l Corp., 220 F.3d 99, 107 (3d Cir. 2000) (determining 

“whether Huep’s signature bound Advent” was “a necessary 

prerequisite to the court’s fulfilling its role of determining 

whether the dispute is one for an arbitrator to decide”).

Here, based on the agreement to arbitrate with 

Opalinski and McCabe, RHI moved to compel bilateral 

arbitration with each of them. By seeking classwide 

arbitration, however, Opalinski and McCabe contend that 

their arbitration agreements empower the arbitrator to resolve

not only their personal claims but the claims of additional 
11

individuals not currently parties to this action. The 

determination whether RHI must include absent individuals in 

its arbitrations with Opalinski or McCabe affects whose 

claims may be arbitrated and is thus a question of arbitrability 

to be decided by the court. See Stolt-Nielsen, 559 U.S. at 683 

(“parties may specify with whom they choose to arbitrate their 

disputes” (emphasis in original)); id. at 686 (in classwide 

arbitration, the arbitrator “no longer resolves a single dispute 

between the parties to a single agreement, but instead resolves 

many disputes between hundreds or perhaps even thousands 

of parties”). Additionally, as Justice Alito warned in his 

concurrence in Oxford Health, courts should be wary of 

concluding that the availability of classwide arbitration is for

the arbitrator to decide, as that decision implicates the rights 

of absent class members without their consent. 133 S. Ct. at 

2071-72 (Alito, J., concurring) (“at least where absent class 

members have not been required to opt in, it is difficult to see 

how an arbitrator’s decision to conduct class proceedings 

could bind absent class members who have not authorized the 

arbitrator to decide on a classwide basis which arbitration 

procedures are to be used” (emphasis in original)). 

2. The availability of classwide arbitration 

implicates the type of controversy submitted to arbitration.

The availability of classwide arbitration is a “question 

of arbitrability” for a second, independent reason – it 

concerns “whether a concededly binding arbitration clause 

applies to a certain type of controversy.” Puleo, 605 F.3d at 

178 (internal quotation marks and citation omitted); see also 

Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 

297 (2010) (“[A] court may order arbitration of a particular 

dispute only where the court is satisfied that the parties 

agreed to arbitrate that dispute[.]” (emphasis in original)). 
12

Opalinski and McCabe argue that, because class 

actions in the context of traditional litigation are a procedural 

construct, the availability of classwide arbitration is also a 

procedural question. In Stolt-Nielsen, however, the Supreme 

Court expressly disclaimed classwide arbitration as simply 

procedural. 559 U.S. at 687 (the differences between class 

and individual arbitration cannot be characterized as a 

question of “merely what ‘procedural mode’ [i]s available to 

present [a party’s] claims”). The Court stated that “classaction arbitration changes the nature of arbitration to such a 

degree that it cannot be presumed the parties consented to it 

by simply agreeing to submit their disputes to an arbitrator.” 

Id. at 685. To further the point, it continued on to explain the 

numerous differences between bilateral and class arbitration, 

notably that

[(1) a]n arbitrator . . . no longer resolves a 

single dispute between the parties to a single 

agreement, but instead resolves many disputes 

between hundreds or perhaps even thousands of 

parties . . . [; (2)] the presumption of privacy 

and confidentiality that applies in many bilateral 

arbitrations [does] not apply in class 

arbitrations[,] thus potentially frustrating the 

parties’ assumptions when they agreed to 

arbitrate[; (3) t]he arbitrator’s award no longer 

purports to bind just the parties to a single 

arbitration agreement, but adjudicates the rights

of absent parties as well[; and (4)] the 

commercial stakes of class-action arbitration are 

comparable to those of class-action litigation, 

even though the scope of judicial review is 

much more limited. 

Id. at 686-87 (internal quotation marks and citations omitted). 

In AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 
13

(2011), the Court similarly emphasized that the “changes 

brought about by the shift from bilateral arbitration to classaction arbitration are fundamental,” concluding that 

“[a]rbitration is poorly suited to the higher stakes of class 

litigation” and that classwide arbitration “is not arbitration as 

envisioned by the FAA.” Id. at 1750, 1751-53 (internal 

quotation marks and citations omitted) (emphasis added).

Accordingly, we read the Supreme Court as 

characterizing the permissibility of classwide arbitration not 

solely as a question of procedure or contract interpretation but 

as a substantive gateway dispute qualitatively separate from 

deciding an individual quarrel. Traditional individual 

arbitration and class arbitration are so distinct that a choice 

between the two goes, we believe, to the very type of 

controversy to be resolved. We turn below to the support our 

Sixth Circuit colleagues give to this conclusion. 

3. Other Circuits

The only other Circuit Court of Appeals to have 

squarely resolved the “who decides” issue is the Sixth, which 

has also held that “whether an arbitration agreement permits 

classwide arbitration is a gateway matter” that is 

presumptively “for judicial determination[.]” Reed Elsevier, 

Inc. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013) (internal 

quotation marks and citation omitted). Citing to Concepcion, 

Oxford Health, and Stolt-Nielsen, the Sixth Circuit Court 

reviewed the differences between classwide and bilateral 

arbitration and noted that “recently the [Supreme] Court has 

given every indication, short of an outright holding, that 

classwide arbitrability is a gateway question rather than a 

subsidiary one.” Id. at 598. Specifically, the Sixth Circuit 

reasoned that
14

[g]ateway questions are fundamental to the 

manner in which the parties will resolve their 

dispute – whereas subsidiary questions, by 

comparison, concern details. And whether the 

parties arbitrate one claim or 1,000 in a single 

proceeding is no mere detail. Unlike the 

question whether, say, one party to an 

arbitration agreement has waived his claim 

against the other – which of course is a 

subsidiary question – the question whether the 

parties agreed to classwide arbitration is vastly 

more consequential than even the gateway 

question whether they agreed to arbitrate 

bilaterally. An incorrect answer in favor of 

classwide arbitration would “forc[e] parties to 

arbitrate” not merely a single “matter that they 

may well not have agreed to arbitrate” but 

thousands of them. 

Id. at 598-99 (second alteration in original) (internal citation 

omitted) (quoting Howsam, 537 U.S. at 84). This analysis is 

persuasive and guides our own. 

Appellees argue that the First, Second and Eleventh 

Circuits have also considered the “who decides” question and 

have concluded that the availability of classwide arbitration is 

not a question of arbitrability for the court but rather a 

question of procedure for the arbitrator to decide. See S. 

Commc’ns Servs., Inc. v. Thomas, 720 F.3d 1352 (11th Cir. 

2013); Fantastic Sams Franchise Corp. v. FSRO Ass’n Ltd., 

683 F.3d 18 (1st Cir. 2012); Jock v. Sterling Jewelers Inc., 

646 F.3d 113 (2d Cir. 2011). This is untrue, as none of those 

Circuits ruled, or even expressed a view, on the issue before 

us. The First Circuit’s decision in Fantastic Sams involved 

associational arbitration, not class arbitration, and expressly 

recognized that an “associational action . . . is [not] equivalent 
15

to a class action.” 683 F.3d at 23. In Jock, the Second

Circuit noted repeatedly that the parties had submitted the 

question whether their contract allowed for classwide

arbitration to the arbitrator, and so the “who decides” 

question was not before the Court. See 646 F.3d at 116, 124. 

And far from holding that the availability of classwide

arbitration is for the arbitrator to decide, the Eleventh Circuit 

has specifically stated that the question remains unresolved. 

See S. Commc’ns Servs., 720 F.3d at 1359 n.6 (“Like the 

Supreme Court, we also have not decided whether the 

availability of class arbitration is a question of 

arbitrability[.]”). 

Since Bazzle, the Supreme Court has not directly 

decided whether the availability of class arbitration is a 

question of arbitrability. The Court’s line of post-Bazzle

opinions, however, indicates that, because of the fundamental 

differences between classwide and bilateral arbitration, and 

the consequences of proceeding with one rather than the 

other, the availability of classwide arbitrability is a 

substantive gateway question rather than a procedural one. 

We thus join the Sixth Circuit Court of Appeals in holding

that the availability of class arbitration is a “question of 

arbitrability.” 

B. There is no evidence rebutting the presumption that 

the District Court should decide all questions of 

arbitrability.

It is presumed that courts must decide questions of 

arbitrability “unless the parties clearly and unmistakably 

provide otherwise.” Howsam, 537 U.S. at 83 (internal 

quotation marks and citation omitted). The burden of

overcoming the presumption is onerous, as it requires express 

contractual language unambiguously delegating the question 

of arbitrability to the arbitrator. See Major League Umpires 
16

Ass’n v. Am. League of Prof’l Baseball Clubs, 357 F.3d 272, 

280-81 (3d Cir. 2004). Silence or ambiguous contractual 

language is insufficient to rebut the presumption. Gen. Elec. 

Co. v. Deutz AG, 270 F.3d 144, 154-55 (3d Cir. 2001). Here, 

Opalinski and McCabe’s employment agreements provide for 

arbitration of any dispute or claim arising out of or relating to 

their employment but are silent as to the availability of 

classwide arbitration or whether the question should be 

submitted to the arbitrator. Nothing else in the agreements or 

record suggests that the parties agreed to submit questions of 

arbitrability to the arbitrator. Thus, the strong presumption 

favoring judicial resolution of questions of arbitrability is not 

undone, and the District Court had to decide whether the 

arbitration agreements permitted classwide arbitration. 

The District Court’s October 2011 Order directing the 

arbitrator to decide the availability of classwide arbitration,

and December 2012 Order denying RHI’s motion to vacate 

the arbitrator’s partial final award, are reversed. This case is 

remanded for the District Court to determine whether 

Appellees’ employment agreements call for classwide 

arbitration. 

* * * * *

“Arbitration is fundamentally a creature of contract, 

and an arbitrator’s authority is derived from an agreement to

arbitrate.” Puleo, 605 F.3d at 194 (alteration in original) 

(internal quotation marks and citation omitted). Here, where 

we have an agreement to arbitrate individual disputes and no 

mention of arbitration for a wider group, we believe the 

parties would have expected a court, not an arbitrator, to 

determine the availability of class arbitration. This is 

especially so given the critical differences between individual 

and class arbitration and the significant consequences of that 

determination for both whose claims are subject to arbitration 
17

and the type of controversy to be arbitrated. Hence we hold 

that the availability of class arbitration is a “question of 

arbitrability” for a court to decide unless the parties 

unmistakably provide otherwise.