          United States Court of Appeals
                        For the First Circuit


No. 16-2189

                    MOUNTAIN VALLEY PROPERTY, INC.,

                         Plaintiff, Appellee,

                                  v.

    APPLIED RISK SERVICES, INC.; APPLIED UNDERWRITERS, INC.;
     APPLIED UNDERWRITERS CAPTIVE RISK ASSURANCE CO., INC.,

                        Defendants, Appellants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]


                                Before

                   Torruella, Thompson, and Barron,
                            Circuit Judges.


     Melissa A. Murphy-Petros, with whom Christopher P. Flanagan
and Wilson Elser Moskowitz Edelman & Dicker LLP were on brief, for
appellants.
     David W. Bertoni, with whom Michael E. Carey and Brann &
Isaacson were on brief, for appellee.



                             July 13, 2017
             TORRUELLA, Circuit Judge. Defendants-Appellants Applied

Risk Services, Inc. ("ARS"), Applied Underwriters, Inc. ("AU"),

and   Applied    Underwriters       Captive   Risk   Assurance        Co.,   Inc.

("AUCRA")     (collectively,    "Applied"),       challenge     the     district

court's order denying their motion to vacate an arbitrator's

decision.    Because the arbitrator did not manifestly disregard the

law and did not exceed his powers, we affirm.

                               I.    Background

             Plaintiff-Appellee,      Mountain    Valley      Property,      Inc.

("MVP"), purchased from AU a comprehensive insurance package known

as SolutionOne® (the "Program") that integrated multiple lines of

insurance,      including   workers'        compensation      insurance       and

employment practices liability insurance, while also offering

certain payroll and tax services and profit sharing.

             As part of the Program, on December 23, 2010, MVP entered

into a three-year Reinsurance Participation Agreement ("RPA") with

AUCRA.   The RPA contained a mandatory arbitration clause, as well

as a Nebraska choice-of-law clause.

             On April 17, 2015, MVP filed a complaint in Franklin

County Maine Superior Court, asserting breach of contract and

various tort claims against Applied and seeking, inter alia, a

return of the amount it was improperly charged from AU.                   In the

complaint, MVP alleged that the Program, though marketed as a cost-

                                      -2-
saving   insurance   alternative,   was   overpriced,   with   Applied

imposing on MVP unlawful fees both in premiums and in amounts

claimed to be due under the RPA.      MVP also stated that AU, the

entity from which it purchased the Program, was not even authorized

to transact insurance in Maine.     Applied removed the case to the

U.S. District Court for the District of Maine based on diversity

jurisdiction and filed a counterclaim, requesting that MVP pay

$13,556 in outstanding premiums.    In addition, Applied argued that

claims by and against AUCRA, alone, had to be arbitrated in

accordance with the RPA between MVP and AUCRA.    MVP contended that

the RPA's arbitration clause was unenforceable.

          On February 25, 2016, over MVP's objection, the district

court referred the claims against AUCRA to arbitration, for a

determination of their arbitrability.

          On April 12, 2016, the arbitrator decided that the case

was not arbitrable and had to be adjudicated in court.            The

arbitrator, in a decision captioned "Final Award of Arbitrator,"

stated that whether this case should be arbitrated turned on the

applicability of the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-

1015,1 and not on the intent of the contracting parties.       If the




1  Section 1012(b) of the McCarran-Ferguson Act states: "No Act
of Congress shall be construed to invalidate, impair, or supersede
any law enacted by any State for the purpose of regulating the

                                -3-
McCarran-Ferguson Act applies, the arbitrator reasoned, then the

Nebraska Uniform Arbitration Act, Neb. Rev. Stat. §§ 25-2601 to

2622 (the "NUAA"),2 reverse-preempts the Federal Arbitration Act,

9 U.S.C. §§ 1-16 (the "FAA").            The arbitrator observed that the

NUAA bans arbitration of insurance-related cases such as this one,

regardless    of    the   parties'   intent      to   arbitrate.   Thus,   the

arbitrator continued, if the NUAA reverse-preempts the FAA, then

the present case would not be arbitrable.

             To determine the applicability of the McCarran-Ferguson

Act, the arbitrator relied on American Bankers Insurance Co. of

Florida v. Inman, which stated:

        Under the McCarran-Ferguson Act, a state law reverse
        preempts federal law only if: (1) the federal statute
        does not specifically relate to the business of
        insurance; (2) the state law was enacted for the
        purpose of regulating the business of insurance; and
        (3) the federal statute operates to invalidate,
        impair, or supersede the state law.

436   F.3d   490,   493   (5th   Cir.    2006)    (internal   quotations   and

citations omitted).




business of insurance . . . unless such Act specifically relates
to the business of insurance."
2  Section 25-2602.01(f)(4) of the NUAA provides that a provision
in a written contract to submit to arbitration any controversy
thereafter arising between the parties is valid and enforceable,
except when that written contract is "[an] agreement concerning or
relating to an insurance policy other than a contract between
insurance companies including a reinsurance contract."

                                        -4-
          The    arbitrator   found   that:   (1)   the   FAA   does   not

specifically relate to the business of insurance; (2) section

25-2602.01(f)(4) of the NUAA, which regulates the relationship

between an insurer and its insured by proscribing arbitration as

a means of resolving any dispute that may arise between them, "was

enacted for the purpose of regulating the business of insurance";

and (3) the FAA, if applied to enforce the arbitration clause,

would "invalidate, impair, or supersede" the NUAA by requiring the

parties to an insurance-related contract to arbitrate -- which is

exactly what the NUAA forbids.          Consequently, the arbitrator

concluded that the McCarran-Ferguson Act applies and the FAA is

reverse-preempted by the NUAA, which, in turn, precludes this case

from being arbitrated as a matter of law.

          The arbitrator also acknowledged Applied's argument that

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995),

and a handful of other precedents mandate that this dispute be

arbitrated.     According to Applied, Mastrobuono held that the FAA

will trump any conflicting state law provisions unless the contract

specifically    provides   otherwise.     Thus,     Applied's   argument

continued, because the RPA merely contained a general Nebraska

choice-of-law clause, but no express provision that any state law

would trump the FAA, this dispute should be arbitrated.




                                  -5-
           The arbitrator then explained why Mastrobuono did not

govern the issue before him.       The arbitrator observed that in

Mastrobuono, the McCarran-Ferguson Act was not before the Court,

nor, indeed, was any other statute prohibiting arbitration.    The

arbitrator explained that Mastrobuono principally concerned the

parties' intentions.   The arbitrator then reasoned that the case

before him was not about the intent of the parties, but rather

about whether a particular dispute could be arbitrated as a matter

of law.   The arbitrator concluded that because the dispute before

him could not be arbitrated as a matter of law due to the McCarran-

Ferguson Act and the NUAA, the intent of the parties did not

matter, and the dispute should be resolved in court.

           Following the arbitrator's award, on June 17, 2016,

AUCRA filed a motion to vacate the arbitration award under the

FAA, and to transfer the entire case to the District of Nebraska

pursuant to 28 U.S.C. § 1404(a).   On August 22, 2016, Judge Hornby

denied AUCRA's motion, and Applied filed a timely appeal from the

denial of the motion to vacate.3




3  The district court ruling denying the motion to transfer is not
on appeal.

                                -6-
                                II.   Discussion4

              We review the district court's order de novo, keeping in

mind   that    "[a]   federal    court's      authority    to    defenestrate   an

arbitration award is extremely limited."             First State Ins. Co. v.

Nat'l Cas. Co., 781 F.3d 7, 11 (1st Cir. 2015).

A.   Jurisdiction

              In   general,   only    final    decisions    or    "interlocutory

orders, decrees and judgments [that] . . . have a final and



4  At oral argument, we raised, sua sponte, the issue of whether
diversity jurisdiction exists in this case. See Florio v. Olson,
129 F.3d 678, 680 (1st Cir. 1997) ("[A] reviewing court has an
obligation to inquire sua sponte into the subject matter
jurisdiction of its cases."). We did so because Applied's brief
in this appeal states "[t]he Complaint alleges compensatory
damages of $18,590 for base fees, $67,481 for improperly charged
composite rates, additional premiums, attorneys' fees and costs,
damage multipliers, penalties, sanctions, punitive damages and
interest." However, Under 28 U.S.C. § 1332(a)(1), district courts
have "original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between citizens of different States."
(Emphasis added).    Because, according to Applied's brief, the
amount alleged in the complaint was $86,071, which did not exceed
$75,000 by a great amount and included attorneys' fees and costs
and interest, it was not certain that the amount in controversy
did, in fact, "[exceed] the sum or value of $75,000, exclusive of
interest and costs." 28 U.S.C. § 1332(a)(1). Having reviewed the
complaint ourselves in greater detail, however, we are now
satisfied that the amount in controversy requirement is met. The
complaint specifies that the amount of $18,590 was for base fees,
and the amount of $67,481 was for improperly charged composite
rates. In any event, the first amended complaint seeks the return
of all fees and charges MVP paid to Applied, which MVP alleges by
that point totaled $281,126.

                                       -7-
irreparable effect on the rights of the parties" are appealable.

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545 (1949).

However, the FAA provides other grounds for appeal.               Inter alia,

§ 16(a)(1)(E) allows an appeal from "an order . . . modifying,

correcting, or vacating an award," and § 16(a)(3) provides that

"an appeal may be taken . . . from a final decision with respect

to an arbitration that is subject to this title."                     9 U.S.C.

§§ 16(a)(1)(E), (a)(3).         Whether the order denying the motion to

vacate the award of arbitration at issue here is appealable under

either    §   16(a)(1)(E)   or    §   16(a)(3)   is    a   question   of   first

impression in this circuit.           MVP argues that we cannot hear this

case   because    neither   §    16(a)(1)(E)     nor   §   16(a)(3)   grant   us

jurisdiction to hear an appeal from an order denying a motion to

vacate.

              In addition, as discussed at oral argument, although not

raised by either party in the court below or in this Court, there

is a question as to whether an appeal from a lower court order,

such as the one presently appealed from, relating to only one of

the parties in a multi-party action requires a Rule 54(b) motion

to have been made in the lower court (Applied did not file a Rule

54(b) motion).      Rule 54(b) provides, "when multiple parties are

involved, the court may direct entry of a final judgment as to one

or more, but fewer than all, claims or parties only if the court

                                       -8-
expressly determines that there is no just reason for delay." Fed.

R. Civ. P. 54(b).         Because the district court made no such

determination, it may be the case that the order denying the motion

to vacate the arbitration award cannot be appealed because it is

not a final judgment.     On the other hand, the district court order

may be a "final decision with respect to an arbitration" within

the meaning of § 16(a)(3) of the FAA, and the FAA may here supersede

Rule 54(b) because it is the more specific statute.

          We     need   not   decide,    however,      these   jurisdictional

questions; instead, we assume jurisdiction and dispose of the case

on the merits.    "The rule is well established in this Circuit that

resolution of a complex jurisdictional issue may be avoided when

the merits can easily be resolved in favor of the party challenging

jurisdiction."     Cozza v. Network Assocs., Inc., 362 F.3d 12, 15

(1st   Cir.     2004)   (citation       omitted)      (bypassing    a    "novel

jurisdictional issue" regarding timeliness of appeal pursuant to

the FAA because the case was susceptible to straightforward merits

disposition).      Although    this     rule   does   not   apply   to   issues

involving Article III subject matter jurisdiction after Steel Co.

v. Citizens for a Better Environment, 523 U.S. 83 (1998), it

remains in place for issues of statutory jurisdiction.              See First

State Ins. Co., 781 F.3d at 10-11 & n.2 (sidestepping a threshold

issue of the timeliness of the appellant's petition to vacate the

                                      -9-
arbitration award because "[the] case is easily resolved on the

merits"); Davignon v. Clemmey, 322 F.3d 1, 10-11 (1st Cir. 2003)

(holding that an appellate court remains free to bypass problematic

jurisdictional   issues   provided   those   issues   do   not   implicate

Article III case or controversy requirement); Parella v. Ret. Bd.

of R.I. Emps.' Ret. Sys., 173 F.3d 46, 54 (1st Cir. 1999).        Because

this case does not involve an Article III issue, we avoid its novel

jurisdictional questions and proceed directly to the merits.

B.   Merits:   Review of the Arbitrator's Decision

           While § 10 of the FAA provides the grounds upon which an

arbitration award may be vacated, we previously stated that the

common law doctrine of manifest disregard of the law, which is not

included in § 10, allows courts "a very limited power to review

arbitration awards outside of section 10 [of the FAA]."            Advest,

Inc. v. McCarthy, 914 F.2d 6, 8 (1st Cir. 1990) (citation omitted).

However, the Supreme Court, in Hall Street Associates, LLC v.

Mattel, Inc., 552 U.S. 576 (2008), cast doubt on the continued

existence of manifest disregard of the law as a ground for vacatur,

and this court stated just this year that the doctrine remains

"only as a judicial gloss."    Ortiz-Espinosa v. BBVA Sec. of P.R.,

Inc., 852 F.3d 36, 46 (1st Cir. 2017).        Even so, this court has

yet to decide whether manifest disregard of the law remains as a

ground for vacatur of arbitration awards, and no manifest disregard

                                 -10-
of the law occurred in the present case.          We can therefore assume

the validity of the doctrine and proceed to apply it.

       [A] successful challenge to an arbitration award,
       apart from section 10, depends upon the challenger's
       ability to show that the award is (1) unfounded in
       reason and fact; (2) based on reasoning so palpably
       faulty that no judge, or group of judges, ever could
       conceivably have made such a ruling; or (3) mistakenly
       based on a crucial assumption that is concededly a
       non-fact.

McCarthy v. Citigroup Glob. Mkts., Inc., 463 F.3d 87, 91 (1st Cir.

2006)(internal citations omitted).

           No manifest disregard of the law occurred in this case.

Applied argues that the arbitrator failed to apply Mastrobuono,

which Applied believes should govern this dispute, and that, in

doing so, the arbitrator disregarded the intentions of the parties.

In fact, as discussed in greater detail above, the arbitrator

carefully distinguished the dispute before him from Mastrobuono,

principally on the grounds that Mastrobuono did not involve the

issue of whether a dispute could be arbitrated as a matter of law

-- whereas the dispute before him involved exactly that issue.           To

resolve whether the dispute before him could be arbitrated as a

matter of law, the arbitrator carefully applied the framework of

American   Bankers,   and   determined    that,   because   the   McCarran-

Ferguson   Act   applied,    the   NUAA   reverse-preempted       the   FAA.




                                   -11-
Therefore, the arbitrator reasoned, the dispute was not arbitrable

as a matter of law, and the parties' intentions did not govern.

            We do not determine whether the arbitrator's decision

was correct, because courts are not in the business of "hear[ing]

claims of factual or legal error by an arbitrator or to consider

the merits of an award."        Poland Spring Corp. v. United Food &

Commercial Workers Int'l Union, Local 1445, 314 F.3d 29, 33 (1st

Cir. 2002).       However, the arbitrator's reasoning and conclusions

are at the very least colorable.          Even if we were to assume, for

the sake of argument, that the arbitrator's legal conclusions were

incorrect, his award plainly was not "(1) unfounded in reason and

fact; (2) based on reasoning so palpably faulty that no judge, or

group of judges, ever could conceivably have made such a ruling."5

McCarthy, 463 F.3d at 91.      Thus, no manifest disregard of the law

occurred.

            Applied also argues that the arbitrator exceeded his

powers.     See 9 U.S.C. § 10(a)(4).       To start, it is difficult to

see   how   the   arbitrator   could   exceed   his   powers   by   deciding

precisely the question the district court, at Applied's request,

authorized him to decide -- whether the dispute was arbitrable.



5  Applied has not argued that the arbitrator's award was
"mistakenly based on a crucial assumption that is concededly a
non-fact." McCarthy, 463 F.3d at 91.

                                   -12-
In any event, Applied here merely reprises the arguments it made

in its attempt to show that the arbitrator manifestly disregarded

the law.     We have already rejected those arguments, because the

arbitrator    produced   a   well-reasoned   award.   The   arbitrator

therefore did not exceed his powers.

                             III.   Conclusion

             Accordingly, we affirm the district court's denial of

Applied's motion to vacate the arbitration award.

             Affirmed.




                                    -13-
