Jays Foods, L.L.C. v. Chemical & Allied Product Workers Union, Local 20, AFL-CIO

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2807
Jays Foods, L.L.C.,
Plaintiff-Appellee,
v.
Chemical & Allied Product Workers Union,
Local 20, AFL-CIO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 6227--Wayne R. Andersen, Judge.
Argued January 21, 2000--Decided March 31, 2000
Before Posner, Chief Judge, and Flaum and Diane P.
Wood, Circuit Judges.
Posner, Chief Judge. We write to untie a
procedural knot partly of our own tying. Jays
Food and a local of the chemical workers union
have a collective bargaining agreement that
provides for arbitration of disputes arising
under it. In 1997 an arbitrator determined that
Jays had violated the agreement by starting a
third shift in a manner that reduced the paid
hours of work of employees on the first and
second shifts. Jays filed suit in federal
district court to vacate the arbitrator’s
decision, and the union counterclaimed to confirm
it. 9 U.S.C. sec. 9; 29 U.S.C. sec. 185. The
district court ruled that the arbitrator had
exceeded his authority under the collective
bargaining agreement, and remanded the matter to
the arbitrator "for further determination,"
adding that by doing this the court was
"terminating case." After the arbitrator rendered
his decision on remand, this time in favor of
Jays, the union appealed from the order of
remand. We dismissed the appeal in an unpublished
order, on the ground that an order by a district
court remanding a case to an arbitrator is not a
final, appealable decision within the meaning of
28 U.S.C. sec. 1291 unless the remand requires a
merely ministerial act, such as calculating
interest when the period for which the

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calculation must be made, the interest rate, the
principal to which the rate is to be applied, and
whether interest is simple or compound have all
been determined. Shearson Loeb Rhoades, Inc. v.
Much, 754 F.2d 773, 776-78 (7th Cir. 1985);
United Steelworkers v. Aurora Equipment Co., 830
F.2d 753, 754 (7th Cir. 1987). We had pointed out
in these cases that if more is required, allowing
an appeal would delay the ultimate resolution of
the parties’ dispute. More was required here. The
arbitrator had written an opinion that did not
satisfy the district judge, but the judge sent it
back to him to make a new award rather than
telling him to rule in favor of Jays.
It is true that by saying "terminating case" the
district court might have been thought to be
issuing a final judgment; but all he might have
meant was that he was terminating the immediate
proceeding before him, that is, the motion to
vacate the arbitrator’s award and the
countermotion to confirm it. And whatever he
meant, that may be all he did. For as we said in
Chrysler Motors Corp. v. International Union,
Allied Industrial Workers of America, 909 F.2d
248, 249 (7th Cir. 1990) (emphasis added), "The
ground of the motion to dismiss the employer’s
appeal is that the order confirming the
arbitrator’s award is not final, since the matter
of back pay remains to be determined by him. It
is final in the district court, but under our
cases that may not be good enough. Provided that
the matter left for determination is not merely
ministerial, . . . an order that does not
determine the entire substantive relief to which
the plaintiff is entitled is not a final decision
even if the loose ends remain to be tied up by a
decision-maker other than the district judge."
But we were wrong, not in general but with
reference to the appealability of orders
remanding cases to arbitrators, in thinking that
the district court’s order of remand was not
immediately appealable. Congress had in 1988
amended the Federal Arbitration Act to make
orders vacating arbitral awards appealable
immediately, though nonfinal, 9 U.S.C. sec.
16(a)(1)(E); Perlman v. Swiss Bank Corp.
Comprehensive Disability Protection Plan, 195
F.3d 975, 979-80 (7th Cir. 1999), unless the
purpose of the remand was merely to enable the
arbitrator to clarify his decision in order to
set the stage for informed appellate review.
Virgin Islands Housing Authority v. Coastal
General Construction Services Corp., 27 F.3d 911,
913-14 (3d Cir. 1994). That was not the purpose
here. Our error was harmless, however, because
the appeal was in any event untimely. The
district court had issued its order of remand on
May 11, 1998, and the union did not file its

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notice of appeal until August 19, which was more
than 30 days later.
We ended our order dismissing the union’s appeal
by saying that "the parties must proceed back
through the federal courts to confirm or vacate
the second award." This Delphic utterance left
unexplained both how the union could challenge
the district court’s first decision, the decision
vacating the arbitrator’s award, which had been
in the union’s favor, and why the parties would
have to file a brand-new suit (if that’s what
"proceed back" meant) in the district court.
Let’s take the second question first. There is no
hard-and-fast rule, except in the Ninth Circuit,
Shapiro v. Paradise Valley Unified School Dist.
No. 69, 152 F.3d 1159 (9th Cir. 1998) (per
curiam), and, by virtue of statute, in the social
security area, 42 U.S.C. sec.sec. 405(g); Shalala
v. Schaefer, 509 U.S. 292 (1993); Richmond v.
Chater, 94 F.3d 263, 266-70 (7th Cir. 1996);
Raitport v. Callahan, 183 F.3d 101 (2d Cir. 1999)
(per curiam); cf. Perlman v. Swiss Bank Corp.
Comprehensive Disability Protection Plan, supra,
195 F.3d at 979-80, and perhaps other specialized
areas with which we are not familiar, about when
a remanding court loses jurisdiction over the
case, thus necessitating a fresh proceeding of
some sort after the remand to bring the issue
back to that court. The presumption, however, is
in favor of relinquishment. For when a court
makes a limited remand unlikely to resolve the
case but intended rather to assist the court in
making its decision (a typical example being a
remand to enable the district court to decide
whether to enter a Rule 54(b) order to enable us
to exercise appellate jurisdiction), the court
will either state that it is retaining
jurisdiction, e.g., Boyko v. Anderson, 185 F.3d
672 (7th Cir. 1999); Alexander v. Chicago Park
District, 773 F.2d 850, 857 (7th Cir. 1985);
United States v. Doe, 63 F.3d 121, 131 (2d Cir.
1995); Caterpillar, Inc. v. N.L.R.B., 138 F.3d
1105, 1107-08 (7th Cir. 1998) (chambers opinion),
and cases cited there, or dismiss with leave to
reinstate, which we treat as the equivalent of a
stay. Baltimore & Ohio Chicago Terminal R.R. v.
Wisconsin Central Limited, 154 F.3d 404, 408 (7th
Cir. 1998). The presumption was reinforced here
by the district court’s statement that it was
"terminating case," suggesting that it was indeed
relinquishing jurisdiction. No doubt the judge
hoped that on remand the arbitrator would render
an award that satisfied both parties or, more
likely, would be solid enough to discourage a
judicial challenge.
On remand, the arbitrator grudgingly ruled in
favor of Jays, emphasizing that he disagreed with
the district court’s decision but was bowing to

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what he thought its implicit command to rule for
the company. Naturally at this point the union
wanted to get appellate review of the district
court’s initial decision, the decision vacating
the arbitral award in the union’s favor. It could
have gotten this by filing a proceeding in the
district court to set aside the second arbitral
award on the ground that the court had erred in
setting aside the first one. If the court was not
persuaded and ruled in favor of Jays, the union
could appeal to us and the appeal would bring up
for review all nonmoot interlocutory orders
issued by the district court, Lauer v. Apfel, 169
F.3d 489, 492 (7th Cir. 1999); LeBlang Motors,
Ltd. v. Subaru of America, Inc., 148 F.3d 680,
689 (7th Cir. 1998); Librizzi v. Children’s
Memorial Medical Center, 134 F.3d 1302, 1305-06
(7th Cir. 1998); Keefe v. Prudential Property &
Casualty Ins. Co., 203 F.3d 218, 226 (3d Cir.
2000), including the order vacating the first
arbitral award.
Granted, this is a slightly tricky point, since
in our hypothetical example of the union’s filing
a fresh proceeding to set aside the award made by
the arbitrator on remand we described as
"interlocutory" an order technically issued in a
prior case. But the usage is correct. When a case
is appealed (here to the district court from the
arbitrator rather than from the district court to
this court) following a remand, there are two
appellate proceedings but only one underlying
litigation, and any interlocutory order in that
litigation, even if it preceded the first appeal,
is (within the limits of the doctrine of law of
the case) open to review on the second appeal,
unless it has become moot in the interim.
Shearson Loeb Rhoades, Inc. v. Much, supra; cf.
Reilly v. Waukesha County, 993 F.2d 1284, 1286-87
(7th Cir. 1993). The fact that an interlocutory
order is appealable doesn’t require that it be
appealed, on pain of forfeiture if it is not.
That would only encourage piecemeal litigation. A
party can wait until the litigation is over and
then bring a single appeal from the final
judgment and challenge all nonmoot interlocutory
orders, appealable or not, rendered along the
way. Retired Chicago Police Ass’n v. City of
Chicago, 7 F.3d 584, 608 (7th Cir. 1993);
Chambers v. Ohio Dept. of Human Services, 145
F.3d 793, 796 (6th Cir. 1998); Ernst v. Child &
Youth Services, 108 F.3d 486, 492-93 (3d Cir.
1997); Sierra Club v. Robertson, 28 F.3d 753, 756
n. 3 (11th Cir. 1994).
Instead of taking up our invitation to file a
new suit to challenge the second arbitral award,
the union inexplicably moved the court in the
original suit, the suit the district court had
dismissed when it remanded the case to the

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arbitrator--a suit that consequently did not
exist when the union filed its motion--to enter a
"Rule 54" order. It is from the denial of that
motion that the union appeals. The reference in
the motion to "Rule 54" was presumably to Rule
54(b) of the Federal Rules of Civil Procedure,
which permits a district court in certain
circumstances to issue a final, and thus
immediately appealable, judgment even though some
piece of the case remains pending in the district
court. E.g., Continental Casualty Co. v. Anderson
Excavating & Wrecking Co., 189 F.3d 512, 516-18
(7th Cir. 1999). The union must have thought it
couldn’t appeal the district court’s order
vacating the initial arbitral award without
getting the court to make that order a Rule 54(b)
judgment, because the order was interlocutory
(and thus unappealable unless made a Rule 54(b)
judgment); it must have thought the case was
continuing in the district court awaiting a
motion to vacate or confirm the second award.
This was doubly wrong. The order vacating the
arbitrator’s first award, though indeed
interlocutory, could, as we have emphasized, be
appealed at the end of the entire litigation. And
there was no pending proceeding in the district
court, which had relinquished jurisdiction over
the controversy when it sent the case back to the
arbitrator. It is not surprising, therefore, that
the district court’s response to the Rule 54(b)
motion was to deny it, on the ground that there
was no case before the court. The motion was
frivolous, and in no wise invited by our previous
order. What is inexplicable, therefore, is why
the union did not file a fresh challenge to the
arbitrator’s second award, which if confirmed by
the district court could have been brought up to
us for review by an appeal from that
confirmation.
The denial of the union’s motion for the entry
of a Rule 54(b) judgment was correct, and is
therefore
Affirmed.

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