[author: Whitney Fore - Law Clerk]

The Seventh Circuit Court of Appeals held that it lacked jurisdiction over an interlocutory appeal of an order that would direct the arbitrator to include year 2008 in a pending arbitration proceeding brought under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA). Central States assessed liability against US foods in 2008 and 2009 because US foods withdrew in part from an underfunded multiemployer pension plan. US Foods requested arbitration pursuant to the MPPAA for the year 2009, but failed to do so for year 2008. In return, Central States sued US Foods to collect the 2008 assessment. US Foods requested that the district court order the arbitrator in the pending arbitration regarding the 2009 assessment to consider also the amount owed for 2008, but the district court refused.

While section 16(a)(1)(B) of the Federal Arbitration Act (FAA) allows interlocutory appeals from orders denying requests for arbitration under section 4 of the FAA, US Funds could not rely on the FAA to establish appellate jurisdiction to review the district court’s denial because section 4 pertains only to arbitration requests contained in written agreements. This arbitration did not concern any written agreement. Furthermore, the Seventh Circuit noted, because arbitration regarding year 2009 was ongoing, the issue as to whether year 2008 should be included in said arbitration must first be decided by the arbitrator, not the court. Central States, Southeast and Southwest Areas Pension Fund v. US Foods, Inc., No. 13-1566 (7th Cir. July 30, 2014).