                                                                           FILED
                                                               United States Court of Appeals
                                     PUBLISH                           Tenth Circuit

                  UNITED STATES COURT OF APPEALS                      May 18, 2016

                                                                  Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                       Clerk of Court
                          _________________________________

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

        Plaintiff-Appellee,

v.                                                      No. 15-4079

PJ UTAH, LLC; PJ CHEESE, INC.;
PJ UNITED, INC.,

        Defendants-Appellees.

------------------------------

SCOTT BONN,

        Intervenor-Appellant.
                       _________________________________

                Appeal from the United States District Court
                           for the District of Utah
                       (D.C. No. 2:14-CV-00695-DB)
                        _________________________________

Aaron M. Kinikini (Laura K. Boswell, with him on the briefs) Disability
Law Center, Salt Lake City, Utah, for Intervenor-Appellant.

Laura J. Maechtlen (Gerald Maatman, Jr., Seyfarth Shaw, LLP, Chicago,
Illinois, and Courtney K. Bohl, Seyfarth Shaw, LLP, San Francisco,
California, with her on the brief) Seyfarth Shaw, LLP, San Francisco,
California, for Defendants-Appellees.
                        _________________________________

Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.
                  _________________________________
BACHARACH, Circuit Judge.
                  _________________________________

      The Equal Employment Opportunity Commission brought a civil

enforcement action against three Papa John’s entities 1 for violating the

Americans with Disabilities Act by denying a reasonable workplace

accommodation to the appellant, Mr. Scott Bonn, and firing him for

requesting this accommodation. Mr. Bonn moved to intervene in the

EEOC’s action, invoking his statutory right to do so. The district court

determined that Mr. Bonn’s claim was subject to arbitration under an

agreement that Mr. Bonn’s mother had executed. Based on this

determination, the district court denied the motion to intervene and ordered

Mr. Bonn to arbitrate his claim.

      Mr. Bonn appeals the denial of his motion to intervene and the order

compelling arbitration. We conclude that the arbitration agreement did not

curtail Mr. Bonn’s unconditional statutory right to intervene. Accordingly,

we reverse the denial of Mr. Bonn’s motion to intervene. We further

conclude that we lack appellate jurisdiction over the order compelling

arbitration. Although the district court ordered Mr. Bonn to arbitrate his

claim, that order did not affect the EEOC’s claim against Papa John’s,

which remains pending. Because that claim remains, the order compelling

arbitration did not constitute a “final decision,” which is necessary for

1
      We refer to these entities collectively as “Papa John’s.”

                                      2
appellate jurisdiction over an order compelling arbitration. Therefore, we

dismiss this part of Mr. Bonn’s appeal.

I.   The district court denied Mr. Bonn’s motion to intervene and
     ordered arbitration of Mr. Bonn’s claim.

     Mr. Bonn was born with Down syndrome, which prevents him from

living on his own. Because of Mr. Bonn’s condition, his mother was

appointed as a limited guardian to manage Mr. Bonn’s personal affairs.

     In September 2011, Mr. Bonn went to work at Papa John’s as a box

folder. Papa John’s requires its new employees to review and execute an

arbitration agreement before starting work, and Mr. Bonn’s mother

executed the arbitration agreement on Mr. Bonn’s behalf.

     To meet his duties as a box folder, Mr. Bonn needed the help of a job

coach. After a few months, however, Papa John’s decided that it would no

longer allow Mr. Bonn to work with a job coach. Believing that Mr. Bonn

could not do his job without a job coach, Papa John’s fired Mr. Bonn.

     Mr. Bonn filed a charge with the EEOC, alleging that Papa John’s

had violated the Americans with Disabilities Act. The EEOC investigated

Mr. Bonn’s charge and brought this civil enforcement action against Papa

John’s under the Americans with Disabilities Act. That statute “direct[s]

the EEOC to exercise the same enforcement powers, remedies, and

procedures that are set forth in Title VII of the Civil Rights Act of 1964

when it is enforcing the ADA’s prohibitions . . . .” EEOC v. Waffle House,

                                      3
Inc., 534 U.S. 279, 285 (2002); see 42 U.S.C. §§ 12117(a) (Americans with

Disabilities Act provision adopting Title VII enforcement provisions),

2000e-5 (Title VII enforcement provisions). Thus, in addressing the

EEOC’s action against Papa John’s, we apply Title VII. See EEOC v. W.H.

Braum, Inc., 347 F.3d 1192, 1195-96 (10th Cir. 2003) (observing that, in

Americans with Disabilities Act enforcement action, enforcement

provisions of Title VII “provide the framework for our analysis”).

      Title VII allows an aggrieved employee to intervene when the EEOC

sues the employer. 42 U.S.C. § 2000e-5(f)(1). Invoking this provision of

Title VII, Mr. Bonn moved to intervene in the EEOC’s action against Papa

John’s. Papa John’s objected, arguing that the arbitration agreement

required Mr. Bonn to arbitrate his claim. On this basis, Papa John’s urged

the district court to deny the motion to intervene and compel Mr. Bonn to

arbitrate his claim.

      The district court agreed with Papa John’s, disallowing intervention

and ordering Mr. Bonn to arbitrate. Mr. Bonn challenges these rulings.

II.   The district court erred by denying Mr. Bonn’s motion to
      intervene.

      As the aggrieved employee, Mr. Bonn had an unconditional statutory

right to intervene in the EEOC’s enforcement action. Nonetheless, the

district court denied the motion to intervene based on the court’s




                                     4
determination that Mr. Bonn had to arbitrate his claim against Papa John’s.

That ruling was erroneous.

      A.       We have appellate jurisdiction to immediately review the
               denial of Mr. Bonn’s motion to intervene as of right, and
               our review is de novo.

      We have appellate jurisdiction over the denial of Mr. Bonn’s motion

to intervene. See Coal. of Ariz./N.M. Ctys. for Stable Econ. Growth v.

Dep’t of the Interior, 100 F.3d 837, 839 (10th Cir. 1996) (“An order

denying intervention is final and subject to immediate review if it prevents

the applicant from becoming a party to an action.”); Arney v. Finney, 967

F.2d 418, 421 (10th Cir. 1993) (“[A]n absolute denial of intervention is a

collateral order and, therefore, is appealable immediately.”).

      Exercising this jurisdiction, we review de novo the denial of Mr.

Bonn’s motion to intervene as a matter of right. See Tri-State Generation

and Transmission Ass’n. v. N.M. Pub. Regulation Comm’n, 787 F.3d 1068,

1071 (10th Cir. 2015) (stating that “[w]e review de novo the denial of a

motion to intervene as of right” under Federal Rule of Civil Procedure

24(a)(2)). 2


2
      Although this Court has repeatedly applied de novo review to denials
of motions to intervene as of right under Federal Rule of Civil Procedure
24(a)(2), we have not yet extended de novo review to motions to intervene
based on an unconditional statutory right under Rule 24(a)(1). We do so
here. Neither party disputes that de novo review should apply to denials of
Rule 24(a)(1) motions, and this holding comports with our case law under
Rule 24(a)(2) and the case law elsewhere. See, e.g., United States v. Metro.
                                       5
       B.   Mr. Bonn had an unconditional statutory right to intervene
            in the EEOC’s action regardless of whether Mr. Bonn’s
            claim against Papa John’s was subject to arbitration.

       The district court acknowledged that Mr. Bonn had “a right to

intervene in the EEOC’s lawsuit,” but then denied Mr. Bonn’s motion to

intervene without explanation. Appellant’s App’x at 71-72. The court

apparently assumed that Mr. Bonn could not intervene because his claim

against Papa John’s was subject to the arbitration agreement. 3 We

respectfully disagree with the district court, for the court’s reasoning lacks

support in the text of the two provisions governing Mr. Bonn’s intervention

as a matter of right: Federal Rule of Civil Procedure 24(a)(1) and Title

VII.

       Rule 24(a)(1) states that a district court “must permit anyone to

intervene who . . . is given an unconditional right to intervene by a federal

statute.” Fed. R. Civ. P. 24(a)(1). Thus, in reviewing the denial of the

motion to intervene, we determine whether Mr. Bonn had an unconditional

statutory right to intervene. If Mr. Bonn had this right, the district court


St. Louis Sewer Dist., 569 F.3d 829, 833 (8th Cir. 2009) (applying de novo
review to denial of motion to intervene under Rule 24(a)(1)); Ruiz v.
Estelle, 161 F.3d 814, 827 (5th Cir. 1998) (same).
3
      The district court expressed this assumption more clearly during the
hearing on Mr. Bonn’s motion to intervene. During that hearing, the
district court asked Mr. Bonn’s counsel whether she conceded “that if [the
court] were to find that Scott Bonn is required to arbitrate any dispute he
has with Papa John’s, that he would not be entitled to intervene.”
Appellee’s App’x at 152.
                                       6
was obligated to allow intervention under Rule 24(a)(1). See Fed. R. Civ.

P. 24(a)(1); see also Bhd. of R.R. Trainmen, 331 U.S. 519, 531 (1947)

(holding that if a party has an unconditional statutory right to intervene,

that party’s “right to intervene [under Rule 24(a)(1)] is absolute and

unconditional”).

      We conclude that this right existed under Title VII. The enforcement

provision of Title VII states that “the person . . . aggrieved shall have the

right to intervene in a civil action brought by the [EEOC].” 42 U.S.C.

§ 2000e-5(f)(1). This language unambiguously gives employees an

unconditional right to intervene in EEOC enforcement actions. EEOC v.

Woodmen of the World Life Ins. Soc’y, 479 F.3d 561, 568-69 (8th Cir.

2007); Willis v. W.H. Braum, Inc., 80 Fed. App’x 63, 66-67 (10th Cir.

2003) (unpublished); 7C Charles Alan Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure § 1906 (3d Ed. 2015). Thus, as

the aggrieved employee in the EEOC’s civil enforcement action, Mr. Bonn

enjoyed an unconditional statutory right to intervene.

      Because Title VII gave Mr. Bonn an unconditional statutory right to

intervene, the text of Rule 24(a)(1) required the district court to grant Mr.

Bonn’s motion. Once it is established that a party enjoys an unconditional

statutory right to intervene, the language of Rule 24(a)(1) does not allow

the district court any discretion to deny intervention even if the party



                                       7
would ultimately need to go to arbitration. 4 See Fed. R. Civ. P. 24(a)(1);

Bhd. of R.R. Trainmen, 331 U.S. at 531. 5

      Mr. Bonn had an unconditional statutory right to intervene in the

EEOC’s action; thus, the district court lacked authority under Rule

24(a)(1) to deny the motion to intervene based on the arbitrability of Mr.

Bonn’s claim. In these circumstances, we reverse the denial of Mr. Bonn’s

motion to intervene.

III . We lack appellate jurisdiction over the district court’s order
      compelling Mr. Bonn to arbitrate his claim.

      Mr. Bonn also challenges the order compelling him to arbitrate his

claim against Papa John’s. According to Mr. Bonn, his mother lacked

authority to execute the arbitration agreement. We cannot consider this

argument because we lack appellate jurisdiction to review the order

4
      Even if the arbitration agreement does require Mr. Bonn to arbitrate
his claim, the district court should have granted Mr. Bonn’s motion to
intervene and then granted Papa John’s motion to compel arbitration. See
EEOC v. Rappaport, Hertz, Cherson & Rosenthal, P.C., 273 F. Supp. 2d
260, 262-65 (E.D.N.Y. 2003).
5
       Papa John’s cites the Eighth Circuit’s opinion in EEOC v. Woodmen
of the World Life Ins. Soc’y, 479 F.3d 561 (8th Cir. 2007), as establishing
that “an individual claimant cannot intervene in an EEOC enforcement
action where that claimant entered into an arbitration agreement with his or
her employer.” Appellee’s Br. at 11. But in Woodmen, the district court
granted the employee’s motion to intervene; and that ruling was not at
issue in the appeal. Woodmen, 479 F.3d at 564, 570. In fact, the Eighth
Circuit remanded the employee’s claim with instructions to stay the claim
pending the conclusion of arbitration; the employee was not excluded from
the litigation. Id. at 570. Thus, Woodmen does not bear on whether the
district court should have granted Mr. Bonn’s motion to intervene under
Rule 24(a)(1).
                                      8
compelling arbitration. See Rural Water Dist. No. 2 v. City of Glenpool,

698 F.3d 1270, 1274 (10th Cir. 2012) (“Federal courts are courts of limited

jurisdiction; they must have a statutory basis for their jurisdiction.”

(quoting Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994))).

      For appellate jurisdiction to exist, the order compelling arbitration

must constitute a “final decision,” which is a decision that disposes of all

claims by all parties in the underlying action. Because the EEOC’s claim

against Papa John’s remains ongoing in district court, the order compelling

arbitration did not dispose of all claims by all parties in the action.

Consequently, the order does not constitute a final decision and we must

dismiss this portion of Mr. Bonn’s appeal for lack of jurisdiction.




      A.    We have appellate jurisdiction to review an order
            compelling arbitration only if that order constitutes a “final
            decision.”

      Appellate jurisdiction over arbitration orders is governed by § 16 of

the Federal Arbitration Act. 9 U.S.C. § 16; see Green Tree Fin. Corp.–

Alabama v. Randolph, 531 U.S. 79, 84 (2000) (“Section 16 of the Federal

Arbitration Act . . . governs appellate review of arbitration orders.”).

Under § 16, we have appellate jurisdiction over an order compelling

arbitration only if the order constitutes a “final decision.” 9 U.S.C.

§ 16(a)(3). The Federal Arbitration Act does not define the term “final

                                       9
decision” as used in §16. But this term, as used in the Federal Arbitration

Act, incorporates the federal courts’ “longstanding interpretation” of the

term “final decision.” Green Tree Fin. Corp.–Alabama, 531 U.S. at 88.

Thus, we interpret the term “final decision” in § 16 based on the term’s

ordinary meaning. See id. at 86.

      We ordinarily consider a decision as “final” only if it disposes of all

claims by all parties. See New Mexico v. Trujillo, 813 F.3d 1308, 1316

(10th Cir. 2016) (“A final decision must dispose of all claims by all parties

. . . .”); see also Fed. R. Civ. P. 54(b) (stating that unless a district court

certifies otherwise, “any order or other decision, however designated, that

adjudicates fewer than all the claims or the rights and liabilities of fewer

than all the parties does not end the action as to any of the claims or

parties”). Thus, we must determine whether the order compelling

arbitration fully disposed of all parties’ claims.

      B.    Because the EEOC’s action against Papa John’s remains
            ongoing in district court, the order compelling arbitration
            does not constitute a final decision.

      The district court’s order did not dispose of the EEOC’s claim, and

that claim is currently proceeding in district court. 6 Thus, the order


6
      The district court’s docket sheet indicates that the EEOC’s claim
against Papa John’s remains pending, and nothing in the record or the
parties’ submissions suggests otherwise. On March 28, 2016, for instance,
the district court entered a scheduling order setting a July 2017 trial date
for the EEOC’s claim. See Scheduling Order at 4, EEOC v. PJ Utah LLC,
No. 2:14-cv-695-DB (D. Utah Mar. 28, 2016), ECF No. 69.
                                       10
compelling Mr. Bonn to arbitrate does not constitute a final decision. See

Appellant’s App’x at 71-72 (district court’s order compelling arbitration of

Mr. Bonn’s claim without addressing the EEOC’s claim). In these

circumstances, we lack appellate jurisdiction over that order. 7

      Mr. Bonn argues that the order compelling arbitration qualifies as a

final decision because it ended his own involvement in the litigation. To

support this argument, Mr. Bonn observes that the order compelling

arbitration was accompanied by a denial of his motion to intervene. “Taken


7
      Under certain circumstances, the collateral order doctrine expands
the ordinary and well-established meaning of “final decision” to include “a
narrow class of decisions that do not terminate the litigation, but must, in
the interest of ‘achieving a healthy legal system’ . . . nonetheless be
treated as ‘final.’” Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
867 (1994) (quoting Cobbledick v. United States, 309 U.S. 323, 326
(1940)). Some circuits have held that the collateral order doctrine is not
available to establish appellate jurisdiction under 9 U.S.C. § 16. E.g., Al
Rushaid v. Nat’l Oilwell Varco, Inc., 814 F.3d 300, 304 (5th Cir. 2016);
Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1022 (9th Cir. 2014).
This Court has not yet weighed in on this question.

      This appeal does not require us to decide the availability of the
collateral order doctrine under § 16. As the appellant, Mr. Bonn bears the
burden to establish appellate jurisdiction. See Raley v. Hyundai Motor Co.,
642 F.3d 1271, 1275 (10th Cir. 2011).

      To satisfy that burden, Mr. Bonn argues that the district court’s order
compelling arbitration qualifies as final in the ordinary and well-
established sense, but he raises no alternative argument that we can
otherwise consider the order as “final” under the collateral order doctrine.

      Because Mr. Bonn does not invoke the collateral order doctrine, we
decline to address the doctrine’s applicability here. See id. (“It is the
appellant’s burden, not ours, to conjure up possible theories to invoke our
legal authority to hear [an] appeal.”).
                                      11
together,” he contends, “these two . . . orders effectively dismissed all of

Mr. Bonn’s claims because he is barred . . . from taking part in the EEOC’s

litigation.” Appellant’s Opening Br. at 24.

      This argument misapprehends the rule on finality. The question is not

whether Mr. Bonn’s own involvement in the district-court action has

ended. Instead, the material question is whether the district court has

disposed of all claims by all parties. See Trujillo, 2016 WL 683831, at *4.

Because the EEOC’s claim is ongoing in district court, the order did not

dispose of all claims by all parties.

      In urging appellate jurisdiction over the order compelling

jurisdiction, Mr. Bonn relies on Green Tree Fin. Corp.-Ala. v. Randolph,

531 U.S. 79 (2000), and Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793

(10th Cir. 1995). These opinions hold that an order compelling a plaintiff

to arbitrate a claim constitutes an appealable final decision under 9 U.S.C.

§ 16(a)(3) when the claim is dismissed with prejudice rather than stayed

pending the conclusion of arbitration. Green Tree, 531 U.S. at 86 & n.2;

Armijo, 72 F.3d at 797. Because the district court denied the motion to

intervene, Mr. Bonn maintains that he has been excluded from the

litigation like the claimants in Green Tree and Armijo, whose claims were

dismissed with prejudice after the court ordered arbitration.

      Mr. Bonn’s reliance on Green Tree and Armijo is misplaced. In both

cases, the disputed orders compelling arbitration disposed of all parties’

                                        12
claims. Green Tree, 531 U.S. at 86 (observing that district court’s order

“disposed of the entire case on the merits and left no part of it pending

before the court”); Armijo, 72 F.3d at 796-97 (exercising appellate

jurisdiction over two separate actions in which the district court had

compelled plaintiffs in each action to arbitrate all pending claims). Here,

however, the EEOC’s claim remains pending in district court. Nothing in

Green Tree or Armijo suggests that we can disregard the rule of finality.

      For these reasons, we dismiss this portion of Mr. Bonn’s appeal for

lack of appellate jurisdiction. 8

IV.   Disposition

      We reverse the denial of Mr. Bonn’s motion to intervene. Based on a

lack of appellate jurisdiction, we dismiss Mr. Bonn’s appeal from the

district court’s order compelling arbitration.




8
      Mr. Bonn also argues that he is entitled to immediate appellate
review of the order compelling arbitration because he cannot appeal that
order until after the court enters final judgment. See Appellant’s Reply Br.
at 5-6. But Mr. Bonn will have an opportunity to challenge the district
court’s arbitrability ruling in post-arbitration proceedings. See Pioneer
Props., Inc. v. Martin, 776 F.2d 888, 891 (10th Cir. 1985) (holding that a
party compelled to arbitrate may seek appellate review of the district
court’s arbitrability determination in post-arbitration proceedings).
                                      13
