UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVE GARY JONES, JR.,

Plaintiff-Appellant,

v.

No. 98-2704

WELLS FARGO GUARD SERVICES, Borg

Warner Protective Services,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CA-98-2725-CCB)

Submitted: February 23, 1999

Decided: April 29, 1999

Before ERVIN and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Steve Gary Jones, Jr., Appellant Pro Se. Theresa Wirtz Hajost,

PORTER, WRIGHT, MORRIS & ARTHUR, Washington, D.C., for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Steve Gary Jones appeals the district court's order granting a

motion to compel arbitration and a motion to dismiss. Under the Federal Arbitration Act (FAA), 9 U.S.C. § 16(a)(1) (1994), immediate

appellate review is available for orders refusing to compel arbitration,

however, appellate review is generally not available for orders compelling arbitration "until after the arbitration has gone forward to a

final award." American Cas. Co. v. L-J, Inc. , 35 F.3d 133, 135 (4th

Cir. 1994) (quotation omitted).

An order compelling arbitration is final for purposes of appellate

jurisdiction under the FAA if it is the result of an"independent proceeding" in which "the sole issue before the district court is the

arbitrability of the dispute." Humphrey v. Prudential Sec. Inc., 4 F.3d

313, 317 (4th Cir. 1993). If the order arises in an"embedded proceeding" and the district court renders all claims subject to arbitration, the

order is not immediately appealable. See In re Pisgah Contractors,

Inc., 117 F.3d 133, 136 (4th Cir. 1997). An embedded proceeding is

one in which the arbitration issue is not the sole issue in the action

but is raised as an incidental issue in an underlying action raising

other claims for relief. See Jeske v. Brooks, 875 F.2d 71, 73 (4th Cir.

1989).

Jones' appeal presents a typical embedded action in which the district court ordered arbitration and rendered all of Jones' claims subject

to arbitration. The arbitrability of Jones' suit was not the sole issue

below, rather it arose as an issue incident to an underlying action

claiming employment discrimination. The district court did not

resolve the merits of Jones' claim, but found them arbitrable. Thus,

Jones' appeal of the order compelling arbitration is interlocutory and

should be dismissed.

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An order compelling arbitration in an embedded proceeding is

interlocutory even when "the practical effect of the district court's

actions was to render a final resolution as to all issues before it."

Humphrey, 4 F.3d at 317. The district court's order granted a motion

to compel arbitration in an embedded proceeding, and thus the order

was not final under the FAA.

Accordingly, we dismiss Jones' appeal as interlocutory. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

DISMISSED

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