Enforcing Arbitral Subpoenas: Reconsidering Federal Question Jurisdiction under FAA Section 7

By Harris, Charles E. | Dispute Resolution Journal, August-October 2011 | Go to article overview

Enforcing Arbitral Subpoenas: Reconsidering Federal Question Jurisdiction under FAA Section 7


Harris, Charles E., Dispute Resolution Journal


This article examines three issues pertinent to the enforcement of arbitral subpoenas under FAA § 7:

(1) Does the nature and unique language of § 7 vest federal courts with federal question jurisdiction?

(2) Can a § 7 action commenced in state court be removed to federal court?

(3) Can a state court dismiss a § 7 action on the ground that federal courts have exclusive jurisdiction?

The weight of federal judicial authority favors the view that the plain language of Section 7 of the Federal Arbitration Act (FAA) does not authorize arbitrators to issue third-party subpoenas for pre-hearing discovery. The rules of many alternative dispute resolution services, however, do not expressly prohibit such subpoenas. Thus, arbitrators regularly issue them, notwithstanding recent federal court decisions refusing to enforce them. Instead, parties are optimistically initiating enforcement proceedings in state courts, hoping to avoid this federal court precedent. But can these actions be removed to federal court on the ground that Section 7 confers original jurisdiction under the federal question statute, codified at Section 1331 of Title 28 of the United States Code? Courts have generally held that other provisions of the FAA do not create a basis for socalled "federal question" jurisdiction under Section 1331.

Although some courts have applied this principle to Section 7, none have carefully considered whether the nature and unique language of Section 7 vest federal courts with this jurisdiction. This article addresses that topic as well as whether these actions can be removed to federal court under Section 1441 of Title 28, based on the text of Section 7 or the "substantial federal question doctrine." It also considers whether state actions may be dismissed because federal courts have exclusive jurisdiction to consider such actions.

FAA Enforcement of Arbitral Subpoenas

An arbitrator's authority to issue a third-party subpoena does not include the authority to en - force that subpoena against a third party. Only a court can compel a third party to comply with an arbitral subpoena. That authority resides in Section 7 of the FAA1 (or a comparable state statute).2 Section 7 reads in pertinent part:

The arbitrators ... may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case.... [I]f any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators....3

The federal circuits are split as to whether Section 7 authorizes arbitrators to issue subpoenas to third parties to the arbitration for prehearing discovery purposes.4 That being said, recent federal court decisions have consistently held that the "straightforward and unambiguous" text of Section 7 does not authorize arbitrators to issue these subpoenas.5

Original Jurisdiction of Federal Courts

A federal court's original jurisdiction is determined by Section 1331, which provides that the district courts "have original jurisdiction of all civil ac tions arising under the Consti tution, laws, or treaties of the United States.6 A civil action "arises under" the federal law that creates the cause of action so federal question jurisdiction will generally exist if a federal statute creates a plaintiff's right to relief.7 Thus, for example, a civil action under Section 19838 alleging a deprivation of rights by a person acting under color of law invokes a federal court's original jurisdic - tion.9

Case law has also established that, in limited circumstances, original jurisdiction can arise from a "well pleaded complaint" seeking relief that "necessarily depends on resolution of a substantial question of federal law. …

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