Jon Sanchez v. Robert Elizondo , 878 F.3d 1216 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JON GREGORY SANCHEZ, No. 16-17345
Plaintiff-Appellee,
D.C. No.
v. 3:15-cv-00474-
RCJ-VPC
ROBERT ELIZONDO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Senior District Judge, Presiding
Argued and Submitted December 4, 2017
San Francisco, California
Filed January 5, 2018
Before: MILAN D. SMITH, JR. and SANDRA S. IKUTA,
Circuit Judges, and JOHN D. BATES, * Senior District
Judge.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Ikuta
*
The Honorable John D. Bates, Senior United States District Judge
for the District of Columbia, sitting by designation.
2 SANCHEZ V. ELIZONDO
SUMMARY **
Arbitration
The panel reversed the district court’s order vacating
Robert Elizondo’s arbitration award and remanding for a
new arbitration; and remanded to the district court for further
proceedings.
Elizondo was awarded $75,000 in damages in the
parties’ arbitration, which Elizondo initiated to recoup losses
he suffered as a result of plaintiff Gregory Sanchez’s
mismanagement of his investment portfolio.
The panel held that there was jurisdiction pursuant to
9 U.S.C. § 16 of the Federal Arbitration Act to review
vacatur orders that also remand for a new arbitration.
The panel held that the district court erred in vacating the
award on the basis that the arbitrator exceed his authority.
The panel held that the arbitrator’s award was not
completely irrational; and the arbitrator confined himself to
the interpretation and application of the parties’ agreement;
and therefore the arbitrator did not exceed his authority. The
panel also held that the arbitrator did not exhibit manifest
disregard of the law.
Because the district court resolved Sanchez’s petition on
only one of the several grounds for vacatur Sanchez asserted,
the panel remanded for further proceedings.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SANCHEZ V. ELIZONDO 3
Judge Ikuta concurred. She would hold that the court
clearly had jurisdiction under 9 U.S.C. § 16, and there was
no need for the majority to engage in an examination of the
policies underlying § 16(a) or the potential meaning of
Congressional silence to determine the scope of the
jurisdictional grant.
COUNSEL
Jonathan E. Neuman (argued), Fresh Meadows, New York,
for Defendant-Appellant.
Steven F. Bus (argued), Reno, Nevada, for Plaintiff-
Appellee.
OPINION
M. SMITH, Circuit Judge:
Defendant-Appellant Robert Elizondo appeals the
district court’s order vacating his arbitration award and
remanding for further proceedings. Elizondo was awarded
$75,000 in damages (the Award) in the parties’ arbitration,
which Elizondo initiated to recoup losses he suffered as a
result of Plaintiff-Appellee Gregory Sanchez’s
mismanagement of his investment portfolio. Elizondo
argues that the district court erred in vacating the Award on
the basis that the arbitrator exceeded his authority.
We agree, reverse the district court’s vacatur, and
remand the case for further proceedings.
4 SANCHEZ V. ELIZONDO
FACTUAL AND PROCEDURAL BACKGROUND
The essential facts in this case are undisputed. In April
of 2008, Elizondo retained Sanchez, who is licensed as a
securities broker by the Financial Industry Regulatory
Authority (FINRA), to manage his investment portfolio. In
September of 2008, Sanchez invested a portion of
Elizondo’s portfolio in leveraged inverse Exchange Traded
Funds. Elizondo believed that this investment placed his
holdings in an inappropriately risky position.
On April 29, 2014, Elizondo brought a claim against
Sanchez, alleging that Sanchez had mismanaged Elizondo’s
portfolio. The parties executed a FINRA Arbitration
Submission Agreement, according to which they agreed
(1) to submit their case to arbitration in accordance with the
FINRA By-Laws, Rules, and Code of Arbitration Procedure;
(2) to be bound by the procedures and rules of FINRA
relating to arbitration; and (3) in the event a hearing was
necessary, to conduct it in accordance with the FINRA Code
of Arbitration Procedure.
FINRA Rule 12401 provides that if the amount of a
claim is greater than $50,000, and not more than $100,000,
“the panel will consist of one arbitrator unless the parties
agree in writing to three arbitrators.” FINRA Rule 12401(b).
Only “[i]f the amount of a claim is more than $100,000”
should “the panel . . . consist of three arbitrators.” FINRA
Rule 12401(c). Accordingly, because Elizondo originally
claimed $100,000 in compensatory damages, his case was
assigned to a single arbitrator.
Eleven days before the arbitration hearing (the Hearing)
was scheduled to take place, Elizondo filed a Pre-Hearing
brief, in which he increased his damages claim to $125,500.
Elizondo did not seek to amend his complaint, nor did
SANCHEZ V. ELIZONDO 5
Sanchez raise any objection to Elizondo’s changed damages
claim, prior to the Hearing.
At the outset of the Hearing, the arbitrator raised the
issue of the increased damages request with the parties.
Specifically, the arbitrator asked the parties whether either
side objected to proceeding before a single arbitrator, in light
of the increased damages claimed by Elizondo and the
FINRA Rules. Sanchez’s counsel objected, and the
arbitrator heard argument on the issue. Ultimately, because
neither party had made a motion to dismiss or to amend the
complaint, the arbitrator determined that he would proceed
alone based on the damages claimed in the original
complaint.
On August 14, 2015, the arbitrator awarded Elizondo
$75,000 in compensatory damages, exclusive of interest,
fees, and costs (the Award). On September 17, 2015,
Sanchez brought a petition in district court to vacate the
Award, pursuant to 9 U.S.C. § 10. Elizondo answered and
brought a countermotion to confirm the Award and for
attorney’s fees.
Sanchez raised several arguments in support of his
petition to vacate the Award, but the district court granted
the petition on the single ground that the arbitrator had
exceeded his powers when he proceeded with a single
arbitrator over Sanchez’s objection, and in violation of
FINRA Rule 12401(c). The court denied Elizondo’s
countermotion to confirm the Award, and it remanded the
case “for further proceedings consistent with [its] Order.”
6 SANCHEZ V. ELIZONDO
STANDARD OF REVIEW
“We review de novo [a] district court’s vacatur of an
arbitration award.” Lagstein v. Certain Underwriters at
Lloyd’s, 607 F.3d 634, 640 (9th Cir. 2010).
ANALYSIS
Jurisdiction
The question of whether we have jurisdiction in this case
presents an issue of first impression in our court. The
Federal Arbitration Act (the FAA), 9 U.S.C. §§ 1–16, allows
an appeal to be taken from any order “confirming or denying
confirmation of an award” or “vacating an award,” or from
“a final decision with respect to an arbitration . . . subject to
[the FAA].” Id. at § 16(a). However, the statute does not
address the appealability of an order that vacates an award
and remands the case for a new arbitration.
All other circuits that have addressed this jurisdictional
question have determined that appellate courts are not
deprived of the jurisdiction conferred by 9 U.S.C. § 16(a)
when a vacatur order also remands for a new arbitration. The
Fifth Circuit reached this conclusion first, in Forsythe
International, S.A. v. Gibbs Oil Company of Texas, 915 F.2d
1017 (5th Cir. 1990). There, a district court had vacated an
arbitration panel’s decision and remanded the case to be
heard by a new panel. Id. at 1018, 1020. The Fifth Circuit
reasoned that because the district court’s decision “nullified
the decision of an arbitration panel,” it was reviewable on
appeal. Id. at 1020. 1 The First, Second, Third, and Seventh
1
The Fifth Circuit and others have subsequently distinguished
between “an order vacating an award and remanding the case back to
SANCHEZ V. ELIZONDO 7
Circuits have since adopted the Fifth’s reasoning and
conclusion. See, e.g., Bull HN Info. Sys., Inc. v. Hutson,
229 F.3d 321, 328 (1st Cir. 2000) (holding that “an order of
the district court which vacates and remands an arbitral
award is not thus made an interlocutory order” and is
appealable); Jays Foods, L.L.C. v. Chem. & Allied Prod.
Workers Union, Local 20, 208 F.3d 610, 612–13 (7th Cir.
2000) (holding that orders vacating and remanding an award
are immediately appealable, though nonfinal); V.I. Hous.
Auth. v. Coastal Gen. Constr. Servs. Corp., 27 F.3d 911, 914
(3d Cir. 1994) (holding that where “remand constitutes a re-
opening that would begin the arbitration all over again,”
even before the same arbitrator, the remand order is
appealable); Landy Michaels Realty Corp. v. Local 32B-32J,
Serv. Emps. Int’l Union, 954 F.2d 794, 797 (2d Cir. 1992).
We are persuaded by the reasoning of these circuits, and
we now hold that we have jurisdiction pursuant to § 16 to
review vacatur orders that also remand for a new arbitration.
The text of § 16 and the policies motivating its enactment
prompt us to reach this conclusion. Though the text of § 16
says nothing with regard to remand orders, it expressly
permits the appeal of orders vacating arbitration awards, and
final decisions respecting arbitration. See 9 U.S.C. § 16(a).
Section 16 also expressly prohibits the appeal of orders
granting a stay pending arbitration, directing arbitration to
proceed, compelling arbitration, or refusing to enjoin an
arbitration. See id. § 16(b). The difference is clear: § 16
arbitration for a rehearing,” and an order that neither vacates nor
confirms an award but only remands a “case back to the same arbitration
panel for further clarification of the existing award,” holding that the
former order is appealable while the latter is not. E.g., Murchison
Capital Partners, L.P. v. Nuance Commc’ns, Inc., 760 F.3d 418, 420–21
(5th Cir. 2014); Landy Michaels Realty Corp. v. Local 32B-32J, Serv.
Emps. Int’l Union, 954 F.2d 794, 797 (2d Cir. 1992).
8 SANCHEZ V. ELIZONDO
permits the appeal of orders that terminate an existing
arbitration, while prohibiting the appeal of orders that
continue an existing arbitration. Because a vacatur that
remands for a new arbitration terminates the initial
arbitration as conclusively as a vacatur that does not remand,
it falls into the former category, and is appealable.
We see no reason to assume that Congress meant to
exclude vacaturs that remand from the category of
appealable vacaturs without saying so. After all, the
inclusion of a remand order when a court vacates an
arbitration award is common. Indeed, when a district court
vacates an award, the FAA itself contemplates remand. See
9 U.S.C. § 10(b) (“If an award is vacated and the time within
which the agreement required the award to be made has not
expired, the court may, in its discretion, direct a rehearing by
the arbitrators.”).
In reaching this conclusion, we do not exceed the bounds
of our interpretive purview. We recognize that our ability to
infer from congressional silence is limited. E.g., Burns v.
United States, 501 U.S. 129, 136 (1991) (“An inference
drawn from congressional silence certainly cannot be
credited when it is contrary to all other textual and contextual
evidence of congressional intent.”); Mobil Oil Corp. v.
Higginbotham, 436 U.S. 618, 625 (1978) (“There is a basic
difference between filling a gap left by Congress’ silence
and rewriting rules that Congress has affirmatively and
specifically enacted.”). We also recognize that we have held
previously “that appellate jurisdiction under 9 U.S.C. § 16(a)
is confined to the types of orders that are specified in the
statute,” and declined to invoke the policy of the FAA to
expand the scope of that jurisdiction. See Van Dusen v. Swift
Transp. Co. Inc., 830 F.3d 893, 899 (9th Cir. 2016). Here,
we simply conclude that construing § 16 to confer
SANCHEZ V. ELIZONDO 9
jurisdiction over cases involving remands for new arbitration
is confining jurisdiction under § 16 to the types of orders that
are specified in the statute. Section 16 expressly permits the
appeal of orders vacating arbitration awards, and it does not
exclude from this appealable category a subcategory of
vacaturs that also involve a remand.
We note as well that we have good reason to infer that
Congress chose not to exclude remands because that
inference is consistent with the policies motivating § 16.
Specifically, this interpretation of § 16 is consistent with the
strong federal policy in favor of arbitration that drove the
FAA’s passage. If, for example, the inclusion of
an order remanding the case to a different
arbitration panel render[ed] a vacatur
unreviewable, parties to arbitration could
never determine whether the district court
acted within the narrow statutory limits
governing vacatur of the original award.
Such a result would disserve the policies that
promote arbitration and restrict judicial
review of awards.
Forsythe Int’l, 915 F.2d at 1020. By contrast, allowing
appeals in such cases would “further[] the ‘pro-arbitration
policy designed to expedite confirmation of arbitration
awards’ articulated by Congress when it amended the FAA
to allow appeal from certain orders concerning arbitration,”
Bull HN Info. Sys., 229 F.3d at 328 (quoting Hewlett-
Packard Co., Inc. v. Berg, 61 F.3d 101, 104 (1st Cir. 1995)),
while still protecting against piecemeal appeals, see, e.g.,
Murchison, 760 F.3d at 422–23; Bull HN Info. Sys., 229 F.3d
at 327–28 (distinguishing “[a] remand for a new arbitration
proceeding” from “an unappealable interlocutory order” that
10 SANCHEZ V. ELIZONDO
would “offend ‘the policies disfavoring partial resolution by
arbitration,’” because the former “encourages finality and
completeness” (quoting Forsythe Int’l, 915 F.2d at 1020
n.1)).
We therefore join the First, Second, Third, Fifth, and
Seventh Circuits in holding that we have jurisdiction
pursuant to § 16 where a vacatur is accompanied by an order
remanding for a new arbitration. Here, the district court
vacated the Award and remanded the case “for further
proceedings consistent with [its] Order.” Because the
vacatur was premised on the arbitrator’s purported error in
allowing the Hearing to proceed before a single arbitrator
over the objection of Sanchez’s counsel, it was effectively a
remand for a new arbitration before a panel of three
arbitrators. We have jurisdiction over Elizondo’s appeal of
this order pursuant to § 16. 2
The Arbitrator Did Not Exceed His Powers.
We now turn to the merits of Elizondo’s appeal. Below,
the district court found that the arbitrator committed error by
proceeding with a single arbitrator over Sanchez’s objection,
in violation of FINRA Rule 12401(c). More specifically, the
district court held that when the arbitrator “proceeded alone”
after noting “that [Elizondo] claimed $125,500 in damages
in his ‘Pre-Hearing brief’ and that [Sanchez] refused to
consent to a single arbitrator,” the arbitrator conducted the
arbitration contrary to “the method agreed upon by the
parties,” and thereby exceeded his powers.
2
Because we hold that we have jurisdiction over this appeal, we
deny Sanchez’s motion to dismiss for lack of subject matter jurisdiction;
motion to strike; motion for sanctions; and motion to supplement his
motion to dismiss.
SANCHEZ V. ELIZONDO 11
We disagree. As relevant here, 9 U.S.C. § 10 provides
that a district court may vacate an arbitration award “where
the arbitrators exceeded their powers.” § 10(a)(4). This is a
very “high standard for vacatur.” Lagstein, 607 F.3d at 641.
“It is not enough for petitioners to show that the panel
committed an error — or even a serious error. ‘It is only
when [an] arbitrator strays from interpretation and
application of the agreement and effectively “dispense[s] his
own brand of industrial justice” that his decision may be
unenforceable.’” Stolt-Nielsen S.A. v. AnimalFeeds Int’l
Corp., 559 U.S. 662, 671 (2010) (alterations in original)
(citations omitted) (quoting Major League Baseball Players
Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (per curiam)).
“The FAA imposes certain rules of fundamental importance,
including the basic precept that arbitration ‘is a matter of
consent, not coercion.’” Id. at 681 (quoting Volt Info. Sci.,
Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S.
468, 479 (1989)). “[T]he parties’ intentions control . . .
because an arbitrator derives his or her powers from the
parties’ agreement to forgo the legal process and submit their
disputes to private dispute resolution.” Id. at 682 (internal
quotations omitted).
“We have held that arbitrators ‘exceed their powers’ in
this regard not when they merely interpret or apply the
governing law incorrectly, but when the award is
‘completely irrational,’” Kyocera Corp. v. Prudential-Bache
Trade Servs., Inc., 341 F.3d 987, 997 (9th Cir. 2003) (en
banc) (quoting French v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 784 F.2d 902, 906 (9th Cir. 1986)), or “exhibits
a ‘manifest disregard of law,’” id. (quoting Todd Shipyards
Corp. v. Cunard Line, Ltd., 943 F.2d 1056, 1059–60 (9th Cir.
1991)). These standards were not met in this case.
12 SANCHEZ V. ELIZONDO
A. The Arbitrator’s Award Was Not Completely
Irrational.
“An award is completely irrational ‘only where the
arbitration decision fails to draw its essence from the
agreement.’” Biller v. Toyota Motor Corp., 668 F.3d 655,
665 (9th Cir. 2012) (quoting Lagstein, 607 F.3d at 642); see
also Lagstein, 607 F.3d at 643 (“[A]rbitrators exceed their
powers . . . when they ‘act outside the scope of the parties’
contractual agreement.’” (quoting Mich. Mut. Ins. Co. v.
Unigard Sec. Ins. Co., 44 F.3d 826, 830 (9th Cir. 1995)).
“An arbitration award ‘draws its essence from the agreement
if the award is derived from the agreement, viewed in light
of the agreement’s language and context, as well as other
indications of the parties’ intentions.’” Biller, 668 F.3d at
665 (quoting Lagstein, 607 F.3d at 642). This standard
applies equally “to the arbitrator’s interpretation of matters
of procedure in the contract as well as matters of substance.”
Lagstein, 607 F.3d at 643; see also Polimaster Ltd. v. RAE
Sys., Inc., 623 F.3d 832, 836 (9th Cir. 2010).
In Lagstein, we addressed an issue similar to the one
presented here. There, the district court had vacated an
arbitration panel’s “punitive damages award on the . . .
ground that the panel no longer had jurisdiction over the
dispute after issuing the initial arbitration award.” 607 F.3d
at 643. The insurance policy at issue “provided that the
arbitration was governed by the commercial arbitration rules
of the American Arbitration Association,” one rule of which
provided that an award be made within thirty days of the
arbitration hearing’s closing date. Id. However, the
arbitration panel had held a punitive-damages hearing and
made a punitive-damages award outside that time limit. Id.
We determined, upon review of the parties’ agreement and
SANCHEZ V. ELIZONDO 13
the governing rules it selected, that the panel had plausibly
interpreted both. Id. at 644–45.
Here, looking to the parties’ agreement and the
governing rules it selected, we conclude that the arbitrator’s
interpretation and award were not irrational. The arbitrator’s
award was grounded in the essence of the parties’ agreement,
which empowered the arbitrator to conduct an arbitration
compliant with FINRA’s By-Laws, Rules, and Code of
Arbitration Procedure. FINRA Rule 12409 empowered the
arbitrator to “interpret and determine the applicability of all
provisions under the Code” and provided that his
interpretations would be “final and binding upon the
parties.”
Here, the arbitrator interpreted and determined the
applicability of FINRA Rule 12401. The arbitrator
recognized that this Rule permitted a single arbitrator to
decide a case where the amount of the claim does not exceed
$100,000, but required a panel to decide a case where the
amount claimed exceeds $100,000. He asked the parties to
address the applicability of the Rule in light of Elizondo’s
Pre-Hearing assertion that he was owed damages in the
amount of $125,500. Ultimately, the arbitrator determined
that because Elizondo had not amended his complaint to
enlarge his original damages claim, the Rule permitting a
case to be heard by a single arbitrator still applied. In other
words, he interpreted Rule 12401’s language — specifically,
“the amount of the claim” — to reference the amount of the
claim pleaded in the operative complaint rather than any
amount later sought in the arbitration.
This interpretation was plausible. “Undoubtedly,
reasonable judges and arbitrators could interpret the
[FINRA] rules differently from the way that the [arbitrator]
did in this case.” Lagstein, 607 F.3d at 645. Indeed, the
14 SANCHEZ V. ELIZONDO
district court did so. But this was error. It was not the
province of the district court, nor is it the province of this
court, to determine whether the arbitrator committed an
error, even a serious error, in interpreting FINRA Rule
12401. See Stolt-Nielsen, 559 U.S. at 671. A reviewing
court need only determine that the arbitrator confined
himself to the interpretation and application of the parties’
agreement. Id. Because the arbitrator did so here, he did not
exceed his authority. The district court erred in vacating the
arbitrator’s rational award.
B. The Arbitrator Did Not Exhibit Manifest
Disregard of the Law.
“Manifest disregard of the law means something more
than just an error in the law or a failure on the part of the
arbitrators to understand or apply the law.” Biller, 668 F.3d
at 665 (quoting Lagstein, 607 F.3d at 641). “To vacate an
arbitration award on this ground, ‘it must be clear from the
record that the arbitrators recognized the applicable law and
then ignored it.’” Id. (quoting Lagstein, 607 F.3d at 641).
Here, it is clear from the record that the arbitrator
recognized the applicable law and then applied it. The
Award itself reflects this, detailing the arbitrator’s decision-
making process as follows:
Immediately prior to the start of the
evidentiary hearing, the Arbitrator raised the
procedural issue of panel composition based
on [Elizondo’s] monetary claim which then
exceeded $100,000.00. In response,
[Elizondo’s] counsel made a request to
proceed with one arbitrator. [Sanchez’s]
counsel objected to [Elizondo’s] counsel’s
request. After due deliberation, the
SANCHEZ V. ELIZONDO 15
Arbitrator granted [Elizondo’s] counsel’s
request to proceed with one arbitrator.
The district court took issue with the arbitrator’s application,
holding that the arbitrator erred when he applied improperly
FINRA Rule 12401(c). However, when it comes to the
“manifest disregard of law” standard, “mere allegations of
error are insufficient.” Carter v. Health Net of Cal., Inc.,
374 F.3d 830, 838 (9th Cir. 2004).
The district court held that the arbitrator had acted
contrary to the parties’ agreement, and cited several out-of-
circuit cases in support of that holding. But even if those
cases were authoritative, which they are not, they fail to
support the district court’s holding. In those cases, courts
were concerned with direct violations of parties’ initial
agreements to arbitrate. See Brook v. Peak Int’l, Ltd.,
294 F.3d 668, 673 (5th Cir. 2002) (violation of panel-
selection procedure outlined in employment agreement);
Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos
Basicos, 25 F.3d 223, 224 (4th Cir. 1994) (violation of
commercial contract requiring arbitrators chosen by mutual
agreement); Avis Rent A Car Sys., Inc. v. Garage Emps.
Union, Local 272, 791 F.2d 22, 23–25 (2d Cir. 1986)
(violation of collective bargaining agreement selecting
applicable rules). In this case, the violation was a step
further removed. The arbitrator did not violate directly the
parties’ initial agreement by relying upon rules other than the
FINRA Rules that the agreement deemed applicable.
Rather, he complied with that agreement in looking to the
FINRA Rules and discussing their applicability with the
parties.
Here, the arbitrator’s alleged violation took place at the
next step, in his interpretation of the applicable rules. Only
16 SANCHEZ V. ELIZONDO
one of the cases that the district court cited involved a similar
scenario, and it does not support the district court’s analysis.
See R.J. O’Brien & Assoc., Inc. v. Pipkin, 64 F.3d 257,
263 (7th Cir. 1995) (holding that arbitrators did not exceed
their powers in interpreting requirements of applicable
National Futures Association Rules regarding arbitrator
appointment). Thus, the district court identified no authority
supporting his vacatur, which we now hold was erroneous.
The arbitrator did not exhibit a manifest disregard of the law.
CONCLUSION
For the foregoing reasons, we reverse the district court’s
vacatur. Because the district court resolved Sanchez’s
petition on only one of the several grounds for vacatur that
Sanchez asserted, we also remand for further proceedings
consistent with this decision. Before the district court may
address Elizondo’s countermotion to confirm the Award, it
must determine whether any additional grounds exist to
vacate, modify, or correct the Award.
Appellee shall bear the costs on appeal.
REVERSED AND REMANDED.
IKUTA, Circuit Judge, concurring:
Under 9 U.S.C. § 16(a) “an appeal may be taken from –
(1) an order– (E) modifying, correcting, or vacating an
award.” Elizondo appeals from a district court order
vacating an award, so we have jurisdiction under § 16.
Because Congress has spoken clearly, there is no need to
engage in an examination of the policies underlying § 16(a)
or the potential meaning of Congressional silence to
SANCHEZ V. ELIZONDO 17
determine the scope of this jurisdictional grant. See New
Orleans Pub. Serv., Inc. v. Council of City of New Orleans,
491 U.S. 350, 358–59 (1989) (“Congress, and not the
Judiciary, defines the scope of federal jurisdiction within the
constitutionally permissible bounds.”). Therefore, I agree
we have jurisdiction over this appeal but do not join Section
I of the majority.