Before Terry, Steadman and Schwelb, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
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Appeals from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)
This sexual harassment lawsuit reaches us on appeal from the trial court's order granting the defendants' "Motion for Dismissal of Action and Referral to Arbitration." The immediate issue before us is whether such an order is immediately appealable. We hold that it is not and hence dismiss the appeal for lack of jurisdiction.
Appellant Mary Ann Judith sued her employer, the Graphic Communications International Union (GCIU), and three of its officers and employees alleging sexual harassment and discrimination. During the time period covered by the complaint, Judith was the executive secretary to the Executive Assistant to the President of the GCIU. All defendants moved to have the case referred to arbitration, relying on the arbitration clause contained in the collective bargaining agreement between the GCIU and the Office and Professional Employees International Union, Local 2 (the "Agreement"). Judith responded that, although she was a dues paying member of Local 2, she was not covered by the collective bargaining agreement.
After first denying the defendants' motion, the court reconsidered based on extrinsic evidence submitted by the defendants. The court requested argument on the issue during a scheduling conference and orally reversed its prior decision, stating, "I am going to . . . dismiss this case in favor of arbitration." Judith appeals this ruling, along with a ruling denying what she termed a Rule 60(b) motion for reconsideration based on additional competing extrinsic evidence.
When a civil suit is initiated and the defense argues that the matter must be submitted to arbitration, "the trial court must decide as a matter of law whether a particular dispute is arbitrable." Haynes v. Kuder, 591 A.2d 1286, 1289 (D.C. 1991). The District of Columbia Uniform Arbitration Act (DCUAA) identifies those orders relating to arbitration that are deemed final for purposes of appeals. D.C. Code § 16-4317(a) (1997). *fn1 While a denial of arbitration is appealable, an order compelling arbitration is not. Id. "The Council's omission of an order to compel arbitration from the list of orders deemed to be final . . . is consistent with the general rule that . . . an order is final for purposes of appeal . . . [when] it disposes of the entire case on the merits" because "the parties' rights and obligations are finally determined only after arbitration is had, or, if an arbitrator's award is challenged, after a court enters judgment upholding, modifying, or vacating an arbitrator's award." American Federation of Government Employees v. Koczak, 439 A.2d 478, 480 (D.C. 1981) (internal quotation omitted).
If the court sends the matter to arbitration, the DCUAA requires a stay pending the outcome of the arbitration proceeding. D.C. Code § 16-4302(d). Had the trial court simply stayed the litigation pending compelled arbitration, the order would not be appealable. Umana v. Swidler & Berlin, 669 A.2d 717, 721 (D.C. 1995); Koczak, supra, 439 A.2d at 480 (D.C. 1981). However, argues appellant, here the trial court dismissed the action, and ordinarily dismissal of a case is a final and appealable judgment. We do not think that this formality can create a grant of jurisdiction.
To begin with, this was not an outright dismissal of the action. The Motion for Dismissal of Action and Referral to Arbitration upon which the court was ruling requested that "the plaintiff be directed to utilize the grievance procedures of the collective bargaining agreement as mandated by the District of Columbia Uniform Arbitration Act, D.C. Code § 16-4301 (1998) ('DCUAA')." The trial court in its oral ruling stated that it was dismissing the case "in favor of arbitration." The docket entry for that date states: "Case dismissed in favor of binding arbitration pursuant to union agreement between parties. [Final Judgment] should be entered." *fn2
Furthermore, the DCUAA requires a stay of litigation when arbitration is to take place, and therefore the court's authority to dismiss the case was at best doubtful. D.C. Code § 16-4302(d). Although the defendants moved for a dismissal, and that is how the court responded, we have made interpretations to effectuate the purpose of the DCUAA in the past. In Hercules & Co. v. Beltway Carpet Serv., Inc., we stated that the defendant's "motion to dismiss must be seen as a motion to compel arbitration," noting that "the granting of the motion to 'dismiss' would not have resulted in the dismissal of count I, but rather in a stay of the litigation as to that claim, pending the outcome of arbitration." 592 A.2d 1069, 1071, 1073 (D.C. 1991) (internal citation omitted). Similarly, in Robinson v. Booker, we explained that "appellant's original motion . . . had sought a dismissal of the complaint on the ground that the contract compelled arbitration; accordingly, that motion must be seen as the application for compelled arbitration . . . " 561 A.2d 483, 484 (D.C. 1989).
A number of courts have treated rulings for dismissal in favor of arbitration as if they were orders to stay litigation. See, e.g., Seacoast Motors v. Chrysler Corp., 143 F.3d 626 (1st Cir. 1998). "Such a result avoids elevating form over substance and promotes both the pro-arbitration purposes of the FAA and the institutional goal of avoiding piecemeal appeals and systemic delays." Id. at 629. The Seventh Circuit noted that "a rule that gave weight to whether the district Judge dismissed rather than stayed an action would allow a district court to determine the jurisdiction of an appellate court," an arbitrary result that would not comport with what Congress intended "when it barred appellate review of interlocutory orders compelling arbitration." Napleton v. GMC, 138 F.3d ...