author: Justice Breyer Justice Scalia,

text:
    EASTERN ASSOCIATED COAL CORP. v. UNITED MINE WORKERS OF AMERICA, DISTRICT 17, et al.
    No. 99-1038.
    Argued October 2, 2000
    Decided November 28, 2000

      Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 67.

      John G. Roberts, Jr., argued the cause for petitioner. With him on the briefs were David G. Leitch, H. Christopher Bartolomucci, Ronald E. Meisburg, Anna M. Dailey, and Donna C. Kelly.

    John cause for respondents. With him on the brief were Jonathan P. Hiatt, James B. Coppess, Judith Rivlin, Charles F. Donnelly, and Laurence Gold.

    Malcolm argued cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Wallace, William Kanter, Mark W. Pennak, Nancy E. McFadden, Paul M. Geier, and Peter J. Plocki.

       Briefs of amici curiae urging reversal were filed for the Air Transport Association of America et al. by John J. Gallagher and Neal D. Mollen; for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; for Exxon Mobile Corp. by Walter E. Dellinger and John F. Daum; and for the Institute for a Drug-Free Workplace by Peter A. Susser.

        Theodore J. St. Antoine, John Kagel, and David E. Feller filed a brief for the National Academy of Arbitrators as amicus curiae urging affirmance.

   Justice Breyer

delivered the opinion of the Court.

A labor arbitrator ordered an employer to reinstate an employee truck driver who had twice tested positive for marijuana. The question before us is whether considerations of public policy require courts to refuse to enforce that arbitration award. We conclude that they do not. The courts may enforce the award. And the employer must reinstate, rather than discharge, the employee.

I

Petitioner, Eastern Associated Coal Corp., and respondent, United Mine Workers of America, are parties to a collective-bargaining agreement with arbitration provisions. The agreement specifies that, in arbitration, in order to discharge an employee, Eastern must prove it has “just cause.” Otherwise the arbitrator will order the employee reinstated. The arbitrator’s decision is final. App. 28-31.

James Smith worked for Eastern as a member of a road crew, a job that required him to drive heavy trucklike vehicles on public highways. As a truck driver, Smith was subject to Department of Transportation (DOT) regulations requiring random drug testing of workers engaged in “safety-sensitive” tasks. 49 CFR §§382.301, 382.305 (1999).

In March 1996, Smith tested positive for marijuana. Eastern sought to discharge Smith. The union went to arbitration, and the arbitrator concluded that Smith’s positive drug test did not amount to “just cause” for discharge. Instead the arbitrator ordered Smith’s reinstatement, provided that Smith (1) accept a suspension of 30 days without pay, (2) participate in a substance-abuse program, and (3) undergo drug tests at the discretion of Eastern (or an approved substance-abuse professional) for the next five years.

Between April 1996 and January four random drug tests. But in July 1997 he again tested positive for marijuana. Eastern again sought to discharge Smith. The union again went to arbitration, and the arbitrator again concluded that Smith’s use of marijuana did not amount to “just cause” for discharge, in light of two mitigating circumstances. First, Smith had been a good employee for 17 years. App. to Pet. for Cert. 26a-27a. And, second, Smith had made a credible and “very personal appeal under oath ... concerning a personal/family problem which caused this one time lapse in drug usage.” Id., at 28a.

The arbitrator that Smith (1) accept a new suspension without pay, this time for slightly more than three months; (2) reimburse Eastern and the union for the costs of both arbitration proceedings; (3) continue to participate in a substance-abuse program; (4) continue to undergo random drug testing; and (5) provide Eastern with a signed, undated letter of resignation, to take effect if Smith again tested positive within the next five years. Id., at 29a.

Eastern brought suit in federal court seeking to have the arbitrator’s award vacated, arguing that the award contravened a public policy against the operation of dangerous machinery by workers who test positive for drugs. 66 F. Supp. 2d 796 (SDWV 1998). The District Court, while recognizing a strong regulation-based public policy against drug use by workers who perform safety-sensitive functions, held that Smith’s conditional reinstatement did not violate that policy. Id., at 804-805. And it ordered the award’s enforcement. Id., at 805.

The Court of Appeals for the Fourth Circuit affirmed on the reasoning of the District Court. 188 F. 3d 501, 1999 WL 635632 (1999) (unpublished). We granted certiorari in light of disagreement among the Circuits. Compare id., at **1 (holding that public policy does not prohibit “reinstatement of employees who have used illegal drugs in the past”), with, e.g., Exxon Corp. v. Esso Workers’ Union, Inc., 118 F. 3d 841, 852 (CA1 1997) (holding that public policy prohibits enforcement of a similar arbitration award). We now affirm the Fourth Circuit’s determination.

Eastern claims that considerations of public policy make the arbitration award unenforceable. In considering this claim, we must assume that the collective-bargaining agreement itself calls for Smith’s reinstatement. That is because both employer and union have granted to the arbitrator the authority to interpret the meaning of their contract’s language, including such words as “just cause.” See Steelwork ers v. Enterprise Wheel & Car Corp., 368 U. S. 593, 599 (1960). They have “bargained for” the “arbitrator’s construction” of their agreement. Ibid. And courts will set aside the arbitrator’s interpretation of what their agreement means only in rare instances. Id., at 596. Of course, an arbitrator’s award “must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice.” Paperworkers v. Misco, Inc., 484 U. S. 29, 38 (1987). “But as long as [an honest] arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,” the fact that “a court is convinced he committed serious error does not suffice to overturn his decision.” Ibid.; see also Enterprise Wheel, supra, at 596 (the “proper” judicial approach to a labor arbitration award is to “refus[e] ... to review the merits”). Eastern does not claim here that the arbitrator acted outside the scope of his contractually delegated authority. Hence we must treat the arbitrator’s award as if it represented an agreement between Eastern and the union as to the proper meaning of the contract’s words “just cause.” See St. Antoine, Judicial Review of Labor Arbitration Awards: A Second Look at Enterprise Wheel and Its Progeny, 75 Mich. L. Rev. 1137, 1155 (1977). For present purposes, the award is not distinguishable from the contractual agreement.

We must then decide whether a contractual reinstatement requirement would fall within the legal exception that makes unenforceable “a collective-bargaining agreement that is contrary to public policy.” W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757, 766 (1983). The Court has made clear that any such public policy must be “explicit,” “well defined,” and “dominant.” Ibid. It must be “ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests.’” Ibid, (quoting Muschany v. United States, 324 U. S. 49, 66 (1945)); accord, Misco, supra, at 43. And, of course, the question to be answered is not whether Smith’s drug use itself violates public policy, but whether the agreement to reinstate him does so. To put the question more specifically, does a contractual agreement to reinstate Smith with specified conditions, see App. to Pet. for Cert. 29a, run contrary to an explicit, well-defined, and dominant public policy, as ascertained by reference to positive law and not from general considerations of supposed public interests? See Misco, supra, at 43.

III

Eastern initially argues that the District Court erred by asking, not whether the award is “contrary to” public policy “as ascertained by reference” to positive law, but whether the award “violates” positive law, a standard Eastern says is too narrow. We believe, however, that the District Court correctly articulated the standard set out in W R. Grace and Misco, see 66 F. Supp. 2d, at 803 (quoting Misco, supra, at 43), and applied that standard to reach the right result.

We agree, that courts’ authority to invoke the public policy exception is not limited solely to instances where the arbitration award itself violates positive law. Nevertheless, the public policy exception is narrow and must satisfy the principles set forth in W R. Grace and Misco. Moreover, in a case like the one before us, where two political branches have created a detailed regulatory regime in a specific field, courts should approach with particular caution pleas to divine further public policy in that area.

Eastern a public policy against reinstatement of workers who use drugs can be discerned from an examination of that regulatory regime, which consists of the Omnibus Transportation Employee Testing Act of 1991 and DOT’s implementing regulations. The Testing Act embodies a congressional finding that “the greatest efforts must be expended to eliminate the .. . use of illegal drugs, whether on or off duty, by those individuals who are involved in [certain safety-sensitive positions, including] the operation of . . . trucks.” Pub. L. 102-143, §2(3), 105 Stat. 953. The Act adds that “increased testing” is the “most effective deterrent” to “use of illegal drugs.” §2(5). It requires the Secretary of Transportation to promulgate regulations requiring “testing of operators of commercial motor vehicles for the use of a controlled substance.” 49 U. S. C. § 31306(b)(1)(A) (1994 ed., Supp. III). It mandates suspension of those operators who have driven a commercial motor vehicle while under the influence of drugs. 49 U. S. C. § 31310(b)(1)(A) (requiring suspension of at least one year for a first offense); § 31310(e)(2) (requiring suspension of at least 10 years for a second offense). And DOT’S implementing regulations set forth sanctions applicable to those who test positive for illegal drugs. 49 CFR § 382.605 (1999).

In Eastern’s view, policy against drug use by transportation workers in safety-sensitive positions and in favor of random drug testing in order to detect that use. Eastern argues that reinstatement of a driver who has twice failed random drug tests would undermine that policy — to the point where a judge must set aside an employer-union agreement requiring reinstatement.

Eastern’s argument, however, one considers further provisions of the Act that make clear that the Act’s remedial aims are complex. The Act says that “rehabilitation is a critical component of any testing program,” §2(7), 105 Stat. 953, that rehabilitation “should be made available to individuals, as appropriate,” ibid., and that DOT must promulgate regulations for “rehabilitation programs,” 49 U. S. C. § 31306(e). The DOT regulations specifically state that a driver who has tested positive for drugs cannot return to a safety-sensitive position until (1) the driver has been evaluated by a “substance abuse professional” to determine if treatment is needed, 49 CFR § 382.605(b) (1999); (2) the substance-abuse professional has certified that the driver has followed any rehabilitation program prescribed, § 382.605(c)(2)(i); and (3) the driver has passed a return-to-duty drug test, § 382.605(c)(1). In addition, (4) the driver must be subject to at least six random drug tests during the first year after returning to the job. § 382.605(c)(2)(ii). Neither the Act nor the regulations forbid an employer to reinstate in a safety-sensitive position an employee who fails a random drug test once or twice. The congressional and regulatory directives require only that the above-stated prerequisites to reinstatement be met.

Moreover these regulations, DOT decided not to require employers either to provide rehabilitation or to "hold a job open for a driver” who has tested positive, on the basis that such decisions "should be left to management/driver negotiation.” 59 Fed. Reg. 7502 (1994). That determination reflects basic background labor law principles, which caution against interference with labor-management agreements about appropriate employee discipline. See, e. g., California Brewers Assn. v. Bryant, 444 U. S. 598, 608 (1980) (noting that it is “this Nation’s longstanding labor policy” to give “employers and employees the freedom through collective bargaining to establish conditions of employment”).

We believe that these expressions of positive law embody several relevant policies. As Eastern points out, these policies include Testing Act policies against drug use by employees in safety-sensitive transportation positions and in favor of drug testing. They also include a Testing Act policy favoring rehabilitation of employees who use drugs. And the relevant statutory and regulatory provisions must be read in light of background labor law policy that favors determination of disciplinary questions through arbitration when chosen as a result of labor-management negotiation.

The us not contrary to these several policies, taken together. The award does not condone Smith’s conduct or ignore the risk to public safety that drug use by truck drivers may pose. Rather, the award punishes Smith by suspending him for three months, thereby depriving him of nearly $9,000 in lost wages, Record Doc. 29, App. A, p. 2; it requires him to pay the arbitration costs of both sides; it insists upon further substance-abuse treatment and testing; and it makes clear (by requiring Smith to provide a signed letter of resignation) that one more failed test means discharge.

The award violates no specific provision of any law or regulation. It is consistent with DOT rules requiring completion of substance-abuse treatment before returning to work, see 49 CFR § 382.605(c)(2)(i) (1999), for it does not preclude Eastern from assigning Smith to a non-safety-sensitive position until Smith completes the prescribed treatment program. It is consistent with the Testing Act’s 1-year and 10-year driving license suspension requirements, for those requirements apply only to drivers who, unlike Smith, actually operated vehicles under the influence of drugs. See 49 U. S. C. §§ 31310(b), (c). The award is also consistent with the Act’s rehabilitative concerns, for it requires substance-abuse treatment and testing before Smith can return to work.

The fact that Smith is a recidivist — that he has failed drug tests twice — is not sufficient to tip the balance in Eastern’s favor. The award punishes Smith more severely for his second lapse. And that more severe punishment, which included a 90-day suspension, would have satisfied even a “recidivist” rule that DOT once proposed but did not adopt — a rule that would have punished two failed drug tests, not with discharge, but with a driving suspension of 60 days. 57 Fed. Reg. 59585 (1992). Eastern argues that DOT’S withdrawal of its proposed rule leaves open the possibility that discharge is the appropriate penalty for repeat offenders. That argument fails, however, because DOT based its withdrawal, not upon a determination that a more severe penalty was needed, but upon a determination to leave in place, as the “only driving prohibition period for a controlled substances violation,” the “completion of rehabilitation requirements and a return-to-duty test with a negative result.” 59 Fed. Reg. 7493 (1994).

Regarding drug use by persons in safety-sensitive positions, then, Congress has enacted a detailed statute. And Congress has delegated to the Secretary of Transportation authority to issue further detailed regulations on that subject. Upon careful consideration, including public notice and comment, the Secretary has done so. Neither Congress nor the Secretary has seen fit to mandate the discharge of a worker who twice tests positive for drugs. We hesitate to infer a public policy in this area that goes beyond the careful and detailed scheme Congress and the Secretary have created.

We recognize that reasonable people can differ as to whether reinstatement or discharge is the more appropriate remedy here. But both employer and union have agreed to entrust this remedial decision to an arbitrator. We cannot find in the Act, the regulations, or any other law or legal precedent an “explicit,” “well defined,” “dominant” public policy to which the arbitrator’s decision “runs contrary.” Misco, 484 U. S., at 43; W. R. Grace, 461 U. S., at 766. We conclude that the lower courts correctly rejected Eastern’s public policy claim. The judgment of the Court of Appeals is

Affirmed.

Justice Scalia,

whom Justice Thomas joins,

I concur Court’s judgment, because I agree that no public policy prevents the reinstatement of James Smith to his position as a truck driver, so long as he complies with the arbitrator’s decision, and with those requirements set out in the Department of Transportation’s regulations. I do not endorse, however, the Court’s statement that “[w]e agree, in principle, that courts’ authority to invoke the public policy exception is not limited solely to instances where the arbitration award itself violates positive law.” Ante, at 63. No case is cited to support that proposition, and none could be. There is not a single decision, since this Court washed its hands of general common-lawmaking authority, see Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), in which we have refused to enforce on “public policy” grounds an agreement that did not violate, or provide for the violation of, some positive law. See, e. g., Hurd v. Hodge, 334 U. S. 24 (1948) (refusing to enforce under the public policy doctrine a restrictive covenant that violated Rev. Stat. § 1978, 42 U. S. C. § 1982).

After its dictum opening arguments of the sort presented by petitioner here, the Court immediately posts a giant “Do Not Enter” sign. “[T]he public policy exception,” it says, “is narrow and must satisfy the principles set forth in W. R. Grace,” ante, at 63, which require that the applicable public policy be “explicit,” “well defined,” “dominant,” and “ascertained ‘by reference to the laws and legal precedents and not from general considerations of supposed public interests,’” W. R. Grace & Co. v. Rubber Workers, 461 U. S. 767, 766 (1983) (quoting Muschany v. United States, 324 U. S. 49, 66 (1945)). It is hard to imagine how an arbitration award could violate a public policy, identified in this fashion, without actually conflicting with positive law. If such an award could ever exist, it would surely be so rare that the benefit of preserving the courts’ ability to deal with it is far outweighed by the confusion and uncertainty, and hence the obstructive litigation, that the Court’s Delphic “agree[ment] in principle” will engender.

The problem goes beyond the actual prohibitions of the law is that there is no way of knowing whether the apparent gaps in the law are intentional or inadvertent. The final form of a statute or regulation, especially in the regulated fields where the public policy doctrine is likely to rear its head, is often the result of compromise among various interest groups, resulting in a decision to go so far and no farther. One can, of course, summon up a parade of horribles, such as an arbitration award ordering an airline to reinstate an alcoholic pilot who somehow escapes being grounded by force of law. But it seems to me we set our face against judicial correction of the omissions of the political branches when we declined the power to define common-law offenses. See United States v. Hudson, 7 Cranch 32 (1812). Surely the power to invalidate a contract providing for actions that are not contrary to law (but “ought” to be) is less important to the public welfare than the power to prohibit harmful acts that are not contrary to law (but “ought” to be). And it is also less efficacious, since it depends upon the willingness of one of the parties to the contract to assert the public policy interest. (If the airline is not terribly concerned about reinstating an alcoholic pilot, the courts will have no opportunity to prevent the reinstatement.) The horribles that can be imagined — if they are really so horrible and ever come to pass — can readily be corrected by Congress or the agency, with no problem of retroactivity. Supervening law is always grounds for the dissolution of a contractual obligation. See Restatement (Second) of Contracts §264 (1979).

In sumgame set in play by the Court’s dictum endorsing “in principle” the power of federal courts to enunciate public policy is not worth the candle. Agreeing with the reasoning of the Court except insofar as this principle is concerned, I concur only in the judgment.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BUSH v. PALM BEACH COUNTY CANVASSING BOARD et al.
    No. 00-836.
    Argued December 1, 2000
    Decided December 4, 2000

      Theodore B. Olson argued the cause for petitioner. With him on the briefs were Terence P. Ross, Douglas R. Cox, Thomas G. Hungar, Mark A. Perry, Benjamin L. Ginsberg, Michael A. Carvin, Barry Richard, John F. Manning, William K. Kelley, Bradford R. Clark, George J. Terwilliger III, Timothy E. Flanigan, and Marcos D. Jiménez. Joseph P. Klock, Jr., argued the cause for Katherine Harris et al., respondents under this Court’s Rule 12.6, in support of petitioner. With him on the briefs were John W. Little HI, Ricardo M. Martinez-Cid, and Bill L. Bryant, Jr.

      Paul F. Hancock, Deputy argued the cause for respondent Butterworth, Attorney General of Florida. With him on the brief were Mr. Butter-worth, pro se, and Jason Vail and Kimberly J. Tucker, Assistant Attorneys General. Laurence H. Tribe argued the cause for respondents Gore et al. With him on the briefs were David Boies, Kathleen M. Sullivan, Thomas C. Gold-stein, Teresa Wynn Roseborough, James A. Orr, Andrew J. Pincus, Kendall Coffey, Jonathan S. Massey, and Peter J. Rubin. Samuel S. Goren, Edward A. Dion, and Tamara M. Scrudders filed a brief for respondents Broward County Canvassing Board et al. Bruce S. Rogow, Beverly A. Pohl, and Denise D. Dytrych filed a brief for respondent Palm Beach County Canvassing Board.

      Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, and Margaret L. Fleming, John J. Park, Jr., Charles B. Campbell, Scott L. Rouse, A. Vernon Barnett IV, and Richard E. Trewhella, Jr., Assistant Attorneys General; for the Commonwealth of Virginia et al. by Mark L. Earley, Attorney General of Virginia, Randolph A. Beales, Chief Deputy Attorney General, William Henry Hurd, Solicitor General, Judith Williams Jagdmann, Deputy Attorney General, Siran S. Faulders and Maureen Riley Matsen, Senior Assistant Attorneys General, Eleanor Anne Ches-ney, Anthony P. Meredith, and Valerie L. Myers, Assistant Attorneys General, Charlie Condon, Attorney General of South Carolina, and Don Stenberg, Attorney General of Nebraska; and for William H. Haynes et al. by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., David A. Cortman, Griffin B. Bell, Paul D. Clement, and Jeffrey S. Bucholtz.

        Steven R. Shapiro, Laughlin McDonald, and James K. Green filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.
      Briefs of amici curiae were filed for the Florida Senate et al. by Charles Fried, Einer Elhauge, and Roger J. Magnuson; for the State of Iowa et al. by Thomas J. Miller, Attorney General of Iowa, Dennis W Johnson, Solicitor General, and Tam B. Ormiston, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Richard Blumenthal of Connecticut, Earl I. Anzai of Hawaii, Karen M. Freeman-Wilson of Indiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, Drew Edmondson of Oklahoma, Hardy Myers of Oregon, and Sheldon Whitehouse of Rhode Island; for the American Civil Rights Union by John C. Armor and Peter Ferrara; for the Coalition for Local Sovereignty by Kenneth B. Clark; and for the Disenfranchised Voters in the USA et al. by Ilise Levy Feitshans.

   Per Curiam.

The Supreme Court of the State of Florida interpreted its elections statutes in proceedings brought to require manual recounts of ballots, and the certification of the recount results, for votes cast in the quadrennial Presidential election held on November 7, 2000. Governor George W. Bush, Republican candidate for the Presidency, filed a petition for certiorari to review the Florida Supreme Court decision. We granted certiorari on two of the questions presented by petitioner: whether the decision of the Florida Supreme Court, by effectively changing the State’s elector appointment procedures after election day, violated the Due Process Clause or 3 U. S. C. § 5, and whether the decision of that court changed the manner in which the State’s electors are to be selected, in violation of the legislature’s power to designate the manner for selection under Art. II, § 1, cl. 2, of the United States Constitution. Post, p. 1004.

On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that Governor Bush had received 2,909,135 votes, and respondent Democrat Vice President Albert Gore, Jr., had received 2,907,351, a margin of 1,784 in Governor Bush’s favor. Under Fla. Stat. § 102.141(4) (2000), because the margin of victory was equal to or less than one-half of one percent of the votes cast, an automatic machine recount occurred. The recount resulted in a much smaller margin of. victory for Governor Bush. Vice President Gore then exercised his statutory right to submit written requests for manual recounts to the canvassing board of any county. See § 102.166. He requested recounts in four counties: Volusia, Palm Beach, Broward, and Miami-Dade.

The parties urged conflicting interpretations of the Florida Election Code respecting the authority of the canvassing boards, the Secretary of State (hereinafter Secretary), and the Elections Canvassing Commission. On November 14, in an action brought by Volusia County, and joined by the Palm Beach County Canvassing Board, Vice President Gore, and the Florida Democratic Party, the Florida Circuit Court ruled that the statutory 7-day deadline was mandatory, but that the Volusia board could amend its returns at a later date. The court further ruled that the Secretary, after “considering all attendant facts and circumstances,” App. to Pet. for Cert. 49a, could exercise her discretion in deciding whether to include the late amended returns in the statewide certification.

The Secretary responded by issuing a set of criteria by which she would decide whether to allow a late filing. The Secretary ordered that, by 2 p.m. the following day, November 15, any county desiring to forward late returns submit a written statement of the facts and circumstances justifying a later filing. Four counties submitted statements, and, after reviewing the submissions, the Secretary determined that none justified an extension of the filing deadline. On November 16, the Florida Democratic Party and Vice President Gore filed an emergency motion in the state court, arguing that the Secretary had acted arbitrarily and in contempt of the court’s earlier ruling. The following day, the court denied the motion, ruling that the Secretary had not acted arbitrarily and had exercised her discretion in a reasonable manner consistent with the court’s earlier ruling. The Democratic Party and Vice President Gore appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court. That court accepted jurisdiction and sua sponte entered an order enjoining the Secretary and the Elections Canvassing Commission from finally certifying the results of the election and declaring a winner until further order of that court.

The Supreme Court, with the expedition requisite for the controversy, issued its decision on November 21. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220 (2000). As the court saw the matter, there were two principal questions: whether a discrepancy between an original machine return and a sample manual recount resulting from the way a ballot has been marked or punched is an “error in vote tabulation” justifying a full manual recount; and how to reconcile what it spoke of as two conflicts in Florida’s election laws: (a) between the timeframe for conducting a manual recount under Fla. Stat. §102.166 (2000) and the timeframe for submitting county returns under §§102.111 and 102.112, and (b) between § 102.111, which provides that the Secretary “shall. . . ignor[e]” late election returns, and § 102.112, which provides that she “may . . . ignor[e]” such returns.

With regard to the first issue, the court held that, under the plain text of the statute, a discrepancy between a sample manual recount and machine returns due to the way in which a ballot was punched or marked did constitute an “error in vote tabulation” sufficient to trigger the statutory provisions for a full manual recount.

With regard to the second issue, the court held that the “shall. . . ignorfe]” provision of § 102.111 conflicts with the “may ... ignor[e]” provision of § 102.112, and that the “may . . . ignor[e]” provision controlled. The court turned to the questions whether and when the Secretary may ignore late manual recounts. The court relied in part upon the right to vote set forth in the Declaration of Rights of the Florida Constitution in concluding that late manual recounts could be rejected only under limited circumstances. The court then stated: “[B]ecause of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy . . . .” 772 So. 2d, at 1240. The court thus imposed a deadline of November 26, at 5 p.m., for a return of ballot counts. The 7-day. deadline of § 102.111, assuming it would have applied, was effectively extended by 12 days. The court further directed the Secretary to accept manual counts submitted prior to that deadline.

As a general rule, this Court defers to a state court’s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution. That provision reads:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ....”

Although we did not address the same question petitioner raises here, in McPherson v. Blacker, 146 U. S. 1, 25 (1892), we said:

“[Art. II, § 1, cl. 2,] does not read that the people or the citizens shall appoint, but that ‘each State shall’; and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion, of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”

There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, § 1, cl. 2, “circumscribe the legislative power.” The opinion states, for example, that “[t]o the éxtent that the Legislature may enact laws regulating the electoral process, those laws are valid only if they impose no ‘unreasonable or unnecessary’ restraints on the right of suffrage” guaranteed by the State Constitution. 772 So. 2d, at 1236. The opinion also states that “[b]ecause election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens’ right to vote ....” Id., at 1237.

§ 5 provides in pertinent part:

“If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.”

The parties before us agree that whatever else may be the effect of this section, it creates a “safe harbor” for a State insofar as congressional consideration of its electoral votes is concerned. If the state legislature has provided for final determination of contests or controversies by a law made prior to election day, that determination shall be conclusive if made at least six days prior to said time of meeting of the electors. The Florida Supreme Court cited 3 U. S. C. §§ 1-10 in a footnote of its opinion, 772 So. 2d, at 1238, n. 55, but did not discuss §5. Since §5 contains a principle of federal law that would assure finality of the State’s determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the “safe harbor” would counsel against any construction of the Election Code that Congress might deem to be a change in the law.

After reviewing the opinion of the Florida Supreme Court, we find “that there is considerable uncertainty as to the precise grounds for the decision.” Minnesota v. National Tea Co., 309 U. S. 551, 555 (1940). This is sufficient reason for us to decline at this time to review the federal questions asserted to be present. See ibid.

“It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases.” Id., at 557.

Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature’s authority under Art. II, §1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U. S. C. § 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


author: CHIEF Justice Rehnquist Justice Ginsburg,

text:
    GREEN TREE FINANCIAL CORP.-ALABAMA et al. v. RANDOLPH
    No. 99-1235.
    Argued October 3, 2000
    Decided December 11, 2000

      Rehnquist, C. J., delivered the opinion of the Court, Part II of which was unanimous and Parts I and III of which were joined by O’Connor, Scalia, Kennedy, and Thomas, JJ. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Stevens and Souter, JJ., joined, and in which Breyer, J., joined as to Parts I and III, post, p. 92.

      Carter G. Phillips argued the cause for petitioners. With him on the briefs were Paul J. .Zidlicky, Robert A Huffaker, and William H. Webster.

    Joseph cause for respondent. With him on the brief were Suzette M. Malveaux, Deborah J. Vagins, C. Knox McLaney III, and Lynn W. Jinks III

      Briefs of amici curiae urging reversal were filed for the Alabama Manufactured Housing Institute by Robert E. Sasser; for the American Arbitration Association by Florence Peterson, John M. Townsend, Daniel Wolf, and James H. Carter; for the American Bankers Association et al. by Christopher R. Lipsett, Eric J. Mogilnicki, and Todd Zubler; and for the Equal Employment Advisory Council by Ann Elizabeth Reesman.

      were the Consumers Union of the United States by Sally J. Greenberg; for Public Citizen by Alan B. Morrison and Paul Levy; for Trial Lawyers for Public Justice et al. by F. Paul Bland, Jr., Arthur H. Bryant, and Jeffrey White; and for Terry Johnson et al. by Daniel A. Edelman and James O. Latturner.

      Briefs of were United States of America by Alan S. Kaplinsky, David H. Pittinsky, Thomas B. Roberts, and Robin S. Conrad; for the National Arbitration Forum by Edward C. Anderson, David F. Herr, and Michael C. McCarthy; for the National Association of Consumer Advocates by Patricia Sturdevant and Michael D. Donovan; and for AARP et al. by Stacy Canan, Jean Constantine-Davis, Nina F. Simon, Deborah Zuckerman, Michael R. Schuster, and Elizabeth Renuart.

   CHIEF Justice Rehnquist

delivered the opinion of the Court.

In this case we first address whether an order compelling arbitration and dismissing a party’s underlying claims is a “final decision with respect to an arbitration” within the meaning of § 16(a)(3) of the Federal Arbitration Act, 9 U. S. C. § 16(a)(3), and thus is immediately appealable pursuant to that Act. Because we decide that question in the affirmative, we also address the question whether an arbitration agreement that does not mention arbitration costs and fees is unenforceable because it fails to affirmatively protect a party from potentially steep arbitration costs. We conclude that an arbitration agreement’s silence with respect to such matters does not render the agreement unenforceable.

I

Respondent Larketta Randolph purchased a mobile home from Better Cents Home Builders, Inc., in Opelika, Alabama. She financed this purchase through petitioners Green Tree Financial Corporation and its wholly owned subsidiary, Green Tree Financial Corp.-Alabama. Petitioners’ Manufactured Home Retail Installment Contract and Security Agreement required that Randolph buy Vendor’s Single Interest insurance, which protects the vendor or lienholder against the costs of repossession in the event of default. The agreement also provided that all disputes arising from, or relating to, the contract, whether arising under case law or statutory law, would be resolved by binding arbitration.

Randolph that they violated the Truth in Lending Act (TILA), 15 U. S. C. § 1601 et seq., by failing to disclose as a finance charge the Vendor’s Single Interest insurance requirement. She later amended her complaint to add a claim that petitioners violated the Equal Credit Opportunity Act, 15 U. S. C. §§ 1691-1691f, by requiring her to arbitrate her statutory causes of action. She brought this action on behalf of a similarly situated class. In lieu of an answer, petitioners filed a motion to compel arbitration, to stay the action, or, in the alternative, to dismiss. The District Court granted petitioners’ motion to compel arbitration, denied the motion to stay, and dismissed Randolph’s claims with prejudice. The District Court also denied her request to certify a class. 991 F. Supp. 1410 (MD Ala. 1997). She requested reconsideration, asserting that she lacked the resources to arbitrate and, as a result, would have to forgo her claims against petitioners. See Plaintiff’s Motion for Reconsideration, Record Doc. No. 53, p. 9. The District Court denied reconsideration. 991 F. Supp., at 1425-1426. Randolph appealed.

The Court of Appeals for the Eleventh Circuit first held that it had jurisdiction to review the District Court’s order because that order was a final decision. 178 F. 3d 1149 (1999). The Court of Appeals looked to § 16 of the Federal Arbitration Act (FAA), 9 U. S. C. § 16, which governs appeal from a district court’s arbitration order, and specifically § 16(a)(3), which allows appeal from “a final decision with respect to an arbitration that is subject to this title.” The court determined that a final, appealable order within the meaning of the FAA is one that disposes of all the issues framed by the litigation, leaving nothing to be done but execute the order. The Court of Appeals found the District Court’s order within that definition.

The court then determined that the arbitration agreement failed to provide the minimum guarantees that respondent could vindicate her statutory rights under the TILA. Critical to this determination was the court’s observation that the arbitration agreement was silent with respect to payment of filing fees, arbitrators’ costs, and other arbitration expenses. On that basis, the court held that the agreement to arbitrate posed a risk that respondent’s ability to vindicate her statutory rights would be undone by “steep” arbitration costs, and therefore was unenforceable. We granted certiorari, 529 U. S. 1052 (2000), and we now affirm the Court of Appeals with respect to the first conclusion, and reverse it with respect to the second.

II

Section 16 of the Federal Arbitration Act, enacted in 1988, governs appellate review of arbitration orders. 9 U. S. C. § 16. It provides:

“(a) An appeal may be taken from—
“(1) an order—
“(A) refusing a stay of any action under section 3 of this title,
“(B) denying a petition under section 4 of this title to order arbitration to proceed,
“(C) denying an application under section 206 of this title to compel arbitration,
“(D) confirming or denying confirmation of an award or partial award, or
“(E) modifying, correcting, or vacating an award;
“(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or
“(3) a final decision with respect to an arbitration that is subject to this title.
“(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—
“(1) granting a stay of any action under section 3 of this title;
“(2) directing arbitration to proceed under section 4 of this title;
“(3) compelling arbitration under section 206 of this title; or
“(4) refusing to enjoin an arbitration that is subject to this title.”

The District Court’s order directed that arbitration proceed and dismissed respondent’s claims for relief. The question before us, then, is whether that order can be appealed as “a final decision with respect to an arbitration” within the meaning of § 16(a)(3). Petitioners urge us to hold that it cannot. They rely, in part, on the FAA’s policy favoring arbitration agreements and its goal of “mov[ing] the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 22 (1983); id., at 24. In accordance with that purpose, petitioners point out, § 16 generally permits immediate appeal of orders hostile to arbitration, whether the orders are final or interlocutory, but bars appeal of interlocutory orders favorable to arbitration.

Section 16(a)(8), however, preserves immediate appeal of any “final decision with respect to an arbitration,” regardless of whether the decision is favorable or hostile to arbitration. And as petitioners and respondent agree, the term “final decision” has a well-developed and longstanding meaning. It is a decision that “‘ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.’” Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 867 (1994), and Coopers & Lybrand v. Livesay, 437 U. S. 463, 467 (1978) (both quoting Catlin v. United States, 324 U. S. 229, 233 (1945)). See also St. Louis, I. M. & S. R. Co. v. Southern Express Co., 108 U. S. 24, 28-29 (1883). Because the FAA does not define “a final decision with respect to an arbitration” or otherwise suggest that the ordinary meaning of “final decision” should not apply, we accord the term its well-established meaning. See Evans v. United States, 504 U. S. 255, 259-260 (1992).

The District solved by arbitration and dismissed respondent’s claims with prejudice, leaving the court nothing to do but execute the judgment. That order plainly disposed of the entire case on the merits and left no part of it pending before the court. The FAA does permit parties to arbitration agreements to bring a separate proceeding in a district court to enter judgment on an arbitration award once it is made (or to vacate or modify it), but the existence of that remedy does not vitiate the finality of the District Court’s resolution of the claims in the instant proceeding. 9 U. S. C. §§ 9, 10, 11. The District Court’s order was therefore “a final decision with respect to an arbitration” within the meaning of § 16(a)(3), and an appeal may be taken. See Sears, Roebuck & Co. v. Mackey, 351 U. S. 427, 431 (1956) (explaining that had the District Court dismissed all the claims in an action, its decision would be final and appealable); Catlin, supra, at 236 (noting that had petitioners’ motion to dismiss been granted and a judgment of dismissal entered, “clearly there would have been an end of the litigation and appeal would lie ...”).

Petitioners contend that the phrase “final decision” does not include an order compelling arbitration and dismissing the other claims in the action, when that order occurs in an “embedded” proceeding, such as this one. Brief for Petitioners 26. “Embedded” proceedings are simply those actions involving both a request for arbitration and other claims for relief. “Independent” proceedings, by contrast, are actions in which a request to order arbitration is the sole issue before the court. Those Courts of Appeals attaching significance to this distinction hold that an order compelling arbitration in an “independent” proceeding is final within the meaning of § 16(a)(3), but that such an order in an “embedded” proceeding is not, even if the district court dismisses the remaining claims. Petitioners contend that the distinction between independent and embedded proceedings and its consequences for finality were so firmly established at the time of §16’s enactment that we should assume Congress meant to incorporate them into § 16(a)(3). See Brief for Petitioners 23-26.

We disagree. § 16(a)(3),s enactment, the rules of finality were firmly established in cases like this one, where the District Court both ordered arbitration and dismissed the remaining claims. We also note that at that time, Courts of Appeals did not have a uniform approach to finality with respect to orders directing arbitration in “embedded” proceedings. The term “final decision,” by contrast, enjoys a consistent and longstanding interpretation. Certainly the plain language of the statutory text does not suggest that Congress intended to incorporate the rather complex independent/ embedded distinction, and its consequences for finality, into § 16(a)(3). We therefore conclude that where, as here, the District Court has ordered the parties to proceed to arbitration, and dismissed all the claims before it, that decision is “final” within the meaning of § 16(a)(3), and therefore appealable.

Ill

We now turn to the question whether Randolph’s agreement to arbitrate is unenforceable because it says nothing about the costs of arbitration, and thus fails to provide her protection from potentially substantial costs of pursuing her federal statutory claims in the arbitral forum. Section 2 of the FAA provides that “[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. In considering whether respondent’s agreement to arbitrate is unenforceable, we are mindful of the FAA’s purpose “to reverse the longstanding judicial hostility to arbitration ágreements . . . and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/ Johnson Lane Corp., 500 U. S. 20, 24 (1991).

In light of that purpose, we have recognized that federal statutory claims can be appropriately resolved through arbitration, and we have enforced agreements to arbitrate that involve such claims. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989) (Securities Act of 1933); Shear- son/American Express Inc. v. McMahon, 482 U. S. 220 (1987) (Securities Exchange Act of 1934 and Racketeer Influenced and Corrupt Organizations Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985) (Sherman Act). We have likewise rejected generalized attacks on arbitration that rest on “suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants.” Rodriguez de Quijas, supra, at 481. These cases demonstrate that even claims arising.under a statute designed to further important social policies may be arbitrated because “ ‘so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,’” the statute serves its functions. See Gilmer, supra, at 28 (quoting Mitsubishi, supra, at 637).

In determining whether statutory claims may be arbitrated, we first ask whether the parties agreed to submit their claims to arbitration, and then ask whether Congress has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue. See Gilmer, supra, at 26; Mitsubishi, supra, at 628. In this case, it is undisputed that the parties agreed to arbitrate all claims relating to their contract, including claims involving statutory rights. Nor does Randolph contend that the TILA evinces an intention to preclude a waiver of judicial remedies. She contends instead that the arbitration agreement’s silence with respect to costs and fees creates a “risk” that she will be required to bear prohibitive arbitration costs if she pursues her claims in an arbitral forum, and thereby forces her to forgo any claims she may have against petitioners. Therefore, she argues, she is unable to vindicate her statutory rights in arbitration. See Brief for Respondent 29-30.

It may well be that the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum. But the record does not show that Randolph will bear such costs if she goes to arbitration. Indeed, it contains hardly any information on the matter. As the Court of Appeals recognized, “we lack . . . information about how claimants fare under Green Tree’s arbitration clause.” 178 F. 3d, at 1158. The record reveals only the arbitration agreement’s silence on the subject, and that fact alone is plainly insufficient to render it unenforceable. The “risk” that Randolph will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement.

To invalidate the agreement on that basis would undermine the “liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital, 460 U. S., at 24. It would also conflict with our prior holdings that the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration. See Gilmer, supra, at 26; McMahon, supra, at 227. We have held that the party seeking to avoid arbitration bears the burden of establishing that Congress intended to preclude arbitration of the statutory claims at issue. See Gilmer, supra; McMahon, supra. Similarly, we believe that where, as here, a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs. Randolph did not meet that burden. How detailed the showing of prohibitive expense must be before the party seeking arbitration must come forward with contrary evidence is a matter we need not discuss; for in this case neither during discovery nor when the case was presented on the merits was there any timely showing at all on the point. The Court of Appeals therefore erred in deciding that the arbitration agreement’s silence with respect to costs and fees rendered it unenforceable.

The judgment of the Court of Appeals is affirmed in part and reversed in part.

It is so ordered.

Justice Ginsburg,

with whom Justice Stevens and Justice Souter join, and with whom as to Parts I and III, concurring in part and dissenting in part.

I

I join Part II of the Court’s opinion, which holds that the District Court’s order, dismissing all the claims before it, was a “final,” and therefore immediately appealable, decision. Ante, at 84-89. On the matter the Court airs in Part III, ante, at 89-92 — allocation of the costs of arbitration — I would not rule definitively. Instead, I would vacate the Eleventh Circuit’s decision, which dispositively declared the arbitration clause unenforceable, and remand the case for closer consideration of the arbitral forum’s accessibility.

. W HH

The Court today deals with a who pays” question, specifically, who pays for the arbitral forum. The Court holds that Larketta Randolph bears the burden of demonstrating that the arbitral forum is financially inaccessible to her. Essentially, the Court requires a party, situated as Randolph is, either to submit to arbitration without knowing who will pay for the forum or to demonstrate up front that the costs, if imposed on her, will be prohibitive. Ante, at 91-92. As I see it, the case in its current posture is not ripe for such a disposition.

The Court recognizes that “the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum.” Ante, at 90. But, the Court next determines, “the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration” and “Randolph did not meet that burden.” Ante, at 91,92. In so ruling, the Court blends two discrete inquiries: First, is the arbitral forum adequate to adjudicate the claims at issue; second, is that forum accessible to the party resisting arbitration.

Our past decisions deal with the first question, the adequacy of the arbitral forum to adjudicate various statutory claims. See, e. g., Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991) (Age Discrimination in Employment Act claims are amenable to arbitration); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987) (Claims under Racketeer Influenced and Corrupt Organizations Act and Securities Exchange Act are amenable to arbitration). These decisions hold that the party resisting arbitration bears the burden of establishing the inadequacy of the arbi-tral forum for adjudication of claims of a particular genre. See Gilmer, 500 U. S., at 26; McMahon, 482 U. S., at 227. It does not follow like the night the day, however, that the party resisting arbitration should also bear the burden of showing that the arbitral forum would be financially inaccessible to her.

The arbitration agreement at issue is contained in a form contract drawn by a commercial party and presented to an individual consumer on a take-it-or-leave-it basis. The case on which the Court dominantly relies, Gilmer, also involved a nonnegotiated arbitration clause. But the “who pays” question presented in this case did not arise in Gilmer. Under the rules that governed in Gilmer — those of the New York Stock Exchange — it was the standard practice for securities industry parties, arbitrating employment disputes, to pay all of the arbitrators’ fees. See Cole v. Burns Int’l Security Servs., 105 F. 3d 1465, 1483 (CADC 1997). Regarding that practice, the Court of Appeals for the District of Columbia Circuit recently commented:

“[I]n Gilmer, the Supreme Court endorsed a system of arbitration in which employees are not required to pay for the arbitrator assigned to hear their statutory claims. There is no reason to think that the Court would have approved arbitration in the absence of this arrangement. Indeed, we are unaware of any situation in American jurisprudence in which a beneficiary of a federal statute has been required to pay for the services of the judge assigned to hear her or his case.” Id., at 1484.

Ill

The form contract in this case provides no indication of the rules under which arbitration will proceed or the costs a consumer is likely to incur in arbitration. Green Tree, drafter of the contract, could have filled the void by specifying, for instance, that arbitration would be governed by the rules of the American Arbitration Association (AAA). Under the AAA’s Consumer Arbitration Rules, consumers in small-claims arbitration incur no filing fee and pay only $125 of the total fees charged by the arbitrator. All other fees and costs are to be paid by the business party. Brief for American Arbitration Association as Amicus Curiae 15-16. Other national arbitration organizations have developed similar models for fair cost and fee allocation. It may be that in this case, as in Gilmer, there is a standard practice on arbitrators’ fees and expenses, one that fills the blank space in the arbitration agreement. Counsel for Green Tree offered a hint in that direction. See Tr. of Oral Arg. 26 (“Green. Tree does pay [arbitration] costs in a lot of instances . ...”). But there is no reliable indication in this record that Randolph’s claim will be arbitrated under any consumer-protective fee arrangement.

As a repeat player in the arbitration required by its form contract, Green Tree has superior information about the cost to consumers of pursuing arbitration. Cf. Raleigh v. Illinois Dept. of Revenue, 530 U. S. 15, 21 (2000) (“the very fact that the burden of proof has often been placed on the taxpayer [to disprove tax liability]. . . reflects several compelling rationales . . . [including] the taxpayer’s readier access to the relevant information”); 9 J. Wigmore, Evidence § 2486 (J. Chadbourn rev. ed. 1981) (where fairness so requires, burden of proof of a particular fact may be assigned to “party who presumably has peculiar means of knowledge” of the fact); Restatement (Second) of Contracts §206 (1979) (“In choosing among the reasonable meanings of . . . [an] agreement or a term thereof, that meaning is generally preferred which operates against the [drafting] party_”). In these circumstances, it is hardly clear that Randolph should bear the burden of demonstrating up front the arbitral forum’s inaccessibility, or that she should be required to submit to arbitration without knowing how much it will cost her.

As I see it, the Court has reached out prematurely to resolve the matter in the lender’s favor. If Green Tree’s practice under the form contract with retail installment sales purchasers resembles that of the employer in Gilmer, Randolph would be insulated from prohibitive costs. And if the arbitral forum were in this case financially accessible to Randolph, there would be no occasion to reach the decision today rendered by the Court. Before writing a term into the form contract, as the District of Columbia Circuit did, see Cole, 105 F. 3d, at 1485, or leaving cost allocation initially to each arbitrator, as the Court does, I would remand for clarification of Green Tree’s practice.

The Court’s opinion, if I comprehend it correctly, does not prevent Randolph from returning to court, postarbitration, if she then has a complaint about cost allocation. If that is so, the issue reduces to when, not whether, she can be spared from payment of excessive costs. Neither certainty nor judicial economy is served by leaving that issue unsettled until the end of the line.

For the reasons stated, I dissent from the Court’s reversal of the Eleventh Circuit’s decision on the cost question. I would instead vacate and remand' for further consideration of the accessibility of the arbitral forum to Randolph.

       The arbitration provision states in pertinent part: “All disputes, claims, or controversies arising from or relating to this Contract or the relationships which result from this Contract, or the validity of this arbitration clause or the entire contract, shall be resolved by binding arbitration by one arbitrator selected by Assignee with consent of Buyer(s). This arbitration Contract is made pursuant to a transaction in interstate commerce, and shall be governed by the Federal Arbitration Act at 9 U. S. C. Section
      1. Judgment upon the award renderedmay be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to litigate disputes through a court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY ASSIGNEE (AS PROVIDED HEREIN). The parties agree and understand that all disputes arising under ease law, statutory law, and all other laws, including, but not limited to, all contract, tort, and property disputes, will be subject to binding arbitration in accord with this Contract. The parties agree and understand that the arbitrator shall have all powers provided by the law and the Contract.” Joint Lodging 37.

       Had the District Court entered a stay instead of a dismissal in this case, that order would not be appealable. 9 U. S. C. § 16(b)(1). The question whether the District Court should have taken that course is not before us, and we do not address it.

       The majority of Courts of Appeals have so opined, contrary to the instant decision of the Court of Appeals for the Eleventh Circuit. See, e. g., Seacoast Motors of Salisbury, Inc. v. Chrysler Corp., 143 F. 3d 626, 628-629 (CA1 1998); Altman Nursing, Inc. v. Clay Capital Corp., 84 F. 3d 769, 771 (CA5 1996); Napleton v. General Motors Corp., 138 F. 3d 1209, 1212 (CA7 1998); Gammaro v. Thorp Consumer Discount Co., 15 F. 3d 93, 95 (CA8 1994); McCarthy v. Providential Corp., 122 F. 3d 1242, 1244 (CA9 1997). But see Arnold v. Arnold Corp. — Printed Communications for Business, 920 F. 2d 1269, 1276 (CA6 1990) (order compelling arbitration in an “embedded” proceeding treated as a final judgment when the District Court dismissed the action in deference to arbitration and had nothing left to do but execute the judgment); Armijo v. Prudential Insurance Co. of America, 72 F. 3d 793, 797 (CA10 1995) (same).

        Seacoast Motors of Salisbury, Inc., supra, at 628 (noting in 1998 that the Court had not before addressed the question whether a district court order directing arbitration and dismissing the proceedings was a “final decision” within the meaning of § 16(a)(3)); Napleton, supra, at 1212 (noting in 1998 that the appeal at issue adds an “unfamiliar ingredient” because the District Court ordered arbitration and dismissed the proceedings).

        Cincinnati Gas & Elec. Co. v. Benjamin F. Shaw Co., 158 (CA6 1983) (rejecting the argument that because a declaratory judgment and other relief was sought in suit where arbitration was ordered, order to arbitrate should not be appealable); Howard Elec. & Mechanical Co. v. Frank Briscoe Co., 754 F. 2d 847, 849 (CA9 1985) (plaintiff brought suit for work performed under contract and then sought arbitration; order compelling arbitration held appealable). Cf. In re Hops Antitrust Litigation, 832 F. 2d 470, 472-473 (CA8 1987) (District Court order requiring arbitration of some claims before it is not a final appealable order because other matters remained pending before the court); County of Durham v. Rickards & Assocs., Inc., 742 F. 2d 811, 813, n. 3 (CA4 1984) (noting that a number of Courts of Appeals have held that an order compelling arbitration may be appealed even when it is entered in the course of a dispute over the underlying claim). See generally 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3914.17, pp. 19-25 (1992).

       In Randolph’s motion for reconsideration in the District Court, she asserted that “[a]rbitration costs are high” and that she did not have the resources to arbitrate. But she failed to support this assertion. She first acknowledged that petitioners had not designated a particular arbitration association or arbitrator to resolve their dispute. Her subsequent discussion of costs relied entirely on unfounded assumptions. She stated that “[f]or the purposes of this discussion, we will assume filing with the [American Arbitration Association], the filing fee is $500 for claims under $10,000 and this does not include the cost of the arbitrator or administrative fees.” Randolph relied on, and attached as an exhibit, what appears to be informational material from the American Arbitration Association that does not discuss the amount of filing fees. She then noted: “[The American Arbitration Association] further cites $700 per day as the average arbitrator’s fee.” For this proposition she cited an article in the Daily Labor Report, February 15, 1996, published by the Bureau of National Affairs, entitled Labor Lawyers at ABA Session Debate Role of American Arbitration Association. Plaintiff’s Motion for Reconsideration, Record Doe. No. 53, pp. 8-9. The article contains a stray statement by an association executive that the average arbitral fee is $700 per day. Randolph plainly failed to make any factual showing that the American Arbitration Association would conduct the arbitration, or that, if it did, she would be charged the filing fee or arbitrator’s fee that she identified. These unsupported statements provide no basis on which to ascertain the actual costs and fees to which she would be subject in arbitration.
      In this Court, Randolph’s brief lists fees incurred in cases involving other arbitrations as reflected in opinions of other Courts of Appeals, while petitioners’ counsel states that arbitration fees are frequently waived by petitioners. None of this information affords a sufficient basis for concluding that Randolph would in fact have incurred substantial costs in the event her claim went to arbitration.

       We decline to reach respondent’s argument that we may affirm the Court of Appeals’ conclusion that the arbitration agreement is unenforceable on the alternative ground that the agreement precludes respondent from bringing her claims under the TILA as a class action. See Brief for Respondent 89-48. The Court of Appeals did not pass on this question, and we need not decide here issues not decided below. Roberts v. Galen of Va., Inc., 525 U. S. 249 (1999) (per curiam).

       In Alabama, as in most States, courts interpret a contract’s silence (about arbitration fees and costs) according to “usage or custom.” Green Tree Financial Corp. of Ala. v. Wampler, 749 So. 2d 409, 415 (Ala. 1999); see also Restatement (Second) of Contracts §204, Comment d (1979) (where an essential term is missing, “the court should supply a term which comports with community standards of fairness and policy”). Cf. First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944 (1995) (courts should generally apply state contract law principles when deciding whether parties agreed to arbitrate a certain matter); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 62-64, and n. 9 (1995) (interpreting arbitration clause according to New York and Illinois law). 2

       They include National Arbitration Forum provisions that limit small-claims consumer costs to between $49 and $175 and a National Consumer Disputes Advisory Committee protocol recommending that consumer costs be limited to a reasonable amount. National Arbitration Forum, Code of Procedure, App. C, Fee Schedule (July 1, 2000); National Consumer Disputes Advisory Committee, Consumer Due Process Protocol, Principle 6, Comment (Apr. 17, 1998), http://www.adr.org/education/education/ consumer_protocol.html.

       The court interpreted a form contract to arbitrate employment disputes, silent as to costs, to require the employer “to pay all of the arbitrator’s fees necessary for a full and fair resolution of [the discharged employee’s] statutory claims.” 105 F. 3d, at 1485.

       Randolph alternatively urges affirmance on the ground that the arbitration agreement is unenforceable because it precludes pursuit of her statutory claim as a class action. But cf. Johnson v. West Suburban Bank, 225 F. 3d 366 (CA3 2000) (holding arbitration clause in short-term loan agreement enforceable even though it may render class action to pursue statutory claims unavailable). The class-action issue was properly raised in the District Court and the Court of Appeals. I do not read the Court’s opinion to preclude resolution of that question now by the Eleventh Circuit. Nothing Randolph has so far done in seeking protection against prohibitive costs forfeits her right to a judicial determination whether her claim may proceed either in court or in arbitration as a class action.