                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 06 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

                                                 No. 11-17916
VIRGINIA VAN DUSEN; et al.,
                                                 D.C. No. 2:10-cv-00899-JWS
              Plaintiffs-Appellants,
                                                 MEMORANDUM*
  v.

SWIFT TRANSPORTATION CO., INC.;
et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                   John W. Sedwick, District Judge, Presiding

                          Submitted November 4, 2013**
                            San Francisco, California

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

       Virginia Van Dusen and Joseph Sheer appeal the district court’s denial of

their motion for reconsideration of the grant of Swift Transportation Co., Inc.’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(Swift) motion to compel arbitration. We have jurisdiction under 28 U.S.C.

§ 1292(b).

      Our prior opinion in this case, In re Van Dusen, expressly held that a district

court must determine whether an agreement for arbitration is exempt from

arbitration under § 1 of the Federal Arbitration Act (FAA) as a threshold matter.

654 F.3d 838, 843–45 (9th Cir. 2011). This ruling is the law of the case. United

States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012). Further, the resolution of this

issue was germane to Van Dusen’s consideration of the third Bauman factor

(whether the district court’s order was clearly erroneous), see Bauman v. U.S. Dist.

Court, 557 F.2d 650, 654–55 (9th Cir. 1977), and occurred “after reasoned

consideration in a published opinion.” United States v. Johnson, 256 F.3d 895,

914 (9th Cir. 2001) (en banc) (plurality opinion). Therefore, the ruling is also the

law of the circuit. Id. The district court erred in holding otherwise. On remand,

the district court must determine whether the Contractor Agreements between each

appellant and Swift are exempt under § 1 of the FAA before it may consider

Swift’s motion to compel.

      REVERSED AND REMANDED.




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