George Forbush v. City of Sparks;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE FORBUSH,
Plaintiff-Appellee,
v.
CITY OF SPARKS; et al.,
Defendants-Appellants.
No. 22-15079
D.C. No.
3:21-cv-00163-MMD-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted August 23, 2023
San Francisco, California
Before: BUMATAY, KOH, and DESAI, Circuit Judges.
Defendants City of Sparks and its City Manager, Assistant City Manager, and
Human Resources Director (collectively, “City”) appeal the district court’s denial of
their motion to compel arbitration of Plaintiff George Forbush’s 42 U.S.C. § 1983
claims. We affirm.
1. We have jurisdiction over the City’s appeal. The City moved to dismiss
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
SEP 1 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and to compel arbitration under the grievance procedure in the parties’ collective
bargaining agreement (“CBA”), specifically invoking Section 4 of the Federal
Arbitration Act. This court has jurisdiction over interlocutory appeals of a district
court’s order denying a motion to compel arbitration filed under Section 4 of the
FAA. 9 U.S.C. § 16(a)(1)(B); see also Coinbase, Inc. v. Bielski, 143 S. Ct. 1915,
1918 (2023) (“When a federal district court denies a motion to compel arbitration,
the losing party has a statutory right to an interlocutory appeal.”). The City appeals
only the denial of its motion to compel, and thus we have jurisdiction.
2. The City did not waive its right to compel arbitration. Because the City
did not take “intentional acts inconsistent with” its “existing right to compel
arbitration” by filing a combined motion to dismiss and motion to compel
arbitration, there is no waiver. Armstrong v. Michaels Stores, Inc., 59 F.4th 1011,
1015 (9th Cir. 2023). The City’s dismissal arguments rested entirely on its argument
that Mr. Forbush’s claims are subject to arbitration, and the City never addressed the
legal merits of Mr. Forbush’s claims. The City has “never wavered from the view
that it had a right to arbitration.” Id. at 1016.
3. Mr. Forbush’s claims are not subject to arbitration. We construe CBAs,
including arbitration provisions, “according to ordinary principles of contract law.”
CNH Indus. N.V. v. Reese, 138 S. Ct. 761, 763 (2018) (per curiam) (quoting M & G
Polymers USA, LLC v. Tackett, 574 U.S. 427, 435 (2015)); see also Morgan v.

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Sundance, Inc., 142 S. Ct. 1708, 1713 (2022). A CBA can waive employees’ rights
to bring statutory claims in court only if, applying general tools of contract
interpretation, the waiver is “clear and unmistakable.” Wright v. Universal Mar.
Serv. Corp., 525 U.S. 70, 80 (1998). In other words, an agreement to arbitrate
employees’ statutory claims must “be ‘explicitly stated’ in the collective-bargaining
agreement.” 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 258 (2009) (quoting Wright,
525 U.S. at 80). No such explicit language exists here.
The CBA’s grievance procedure applies only to employee “disputes
concerning the interpretation and application of [the CBA].” Mr. Forbush’s First
Amendment retaliation claims do not involve applying or interpreting the CBA. The
CBA has a general nondiscrimination provision that requires the City to apply the
CBA “equally to all employees in the negotiating unit without discrimination as to
political affiliation or in accordance with any applicable Nevada or federal law.” But
that “is not the same as making compliance with” the First Amendment “a
contractual commitment that would be subject to the arbitration clause.” Wright, 525
U.S. at 81. The CBA lacks a “clear and unmistakable” waiver of Mr. Forbush’s right
to bring his § 1983 claims in federal court.
AFFIRMED.

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