            Case: 14-10699   Date Filed: 10/02/2014   Page: 1 of 4


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10699
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:13-cv-80080-KLR



INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS SYSTEM COUNCIL U-4,

                                              Plaintiff - Appellant,

versus

FLORIDA POWER & LIGHT CO.,

                                              Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (October 2, 2014)

Before TJOFLAT, JORDAN, and COX, Circuit Judges.

PER CURIAM:
               Case: 14-10699   Date Filed: 10/02/2014   Page: 2 of 4


      The facts of this case are well known to the parties. In short, Florida Power

& Light (“FPL”) revoked Michael Kohl’s unescorted nuclear access to its Turkey

Point nuclear power plant after Kohl was arrested for grand theft. FPL contends

that it was required to revoke Kohl’s unescorted nuclear access due to certain

Nuclear Regulatory Commission (“NRC”) regulations, which state that an

individual must be “trustworthy and reliable” to maintain unescorted access. The

International Brotherhood of Electrical Workers, System Council U-4 (“IBEW”)

filed a grievance on behalf of Kohl stating that “I Mike Kohl, request that my

Nuclear Access be reinstated and I be returned to work and made whole.” After

filing this grievance, the IBEW filed a Petition to Compel Arbitration in the United

States District Court for the Southern District of Florida. While this petition was

pending, FPL lifted its revocation of Kohl’s unescorted access after the state

dropped the grand theft charges. FPL then moved for the district court to dismiss

the case for want of subject matter jurisdiction because the case was moot. The

district court granted FPL’s motion, holding that “[s]ince there is no longer an

impediment to Kohl obtaining unescorted access, there is no effective relief the

Court could grant via arbitration.” (District Court’s Order, Doc. 27 at 2). IBEW

now appeals.

      We review de novo a district court’s determination of subject matter

jurisdiction. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340


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(11th Cir. 2011). And we review de novo a district court’s order denying a motion

to compel arbitration. Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d

1255, 1257 (11th Cir. 2003).

      IBEW’s contention that the district court could not determine whether the

underlying grievance itself is moot is without merit. Though cited by neither party,

the United States Supreme Court’s decision in Vaden v. Discover Bank, 556 U.S.

49, 62, 129 S. Ct. 1262, 1273 (2009), makes clear that “a federal court should

determine its jurisdiction by ‘looking through’ a [petition to compel arbitration] to

the parties’ underlying substantive controversy.” Id. (citing 9 U.S.C. § 4 (2012)).

If a district court lacks jurisdiction over the substantive controversy, it lacks

jurisdiction to compel arbitration. Id.

      But here, the district court incorrectly determined that the underlying

controversy was moot. The district court acknowledged that IBEW’s grievance on

behalf of Kohl “specifically raises the issue of back pay and reinstatement at the

Turkey Point facility.” (Doc. 27 at 2). Thus, even if the issue of nuclear access is

moot, IBEW’s request that Kohl be returned to his previous job and receive back

pay is not.

      In a footnote, the district court examined the issues of back pay and

reinstatement, indicating that back pay and reinstatement are “collateral effect[s] of

FPL’s application of NRC regulations and [are] unrelated to the collective


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bargaining agreement between FPL and IBEW.” (Doc. 27 at 2 n.1). On remand,

the district court should consider only whether the collective bargaining agreement

provides the arbitrator with authority to adjudicate this dispute, not issues that go

to the merits, such as whether the NRC regulations render FPL’s actions

unreviewable.     See, e.g., International Bhd. of Elec. Workers Local 2150 v.

NextEra Energy Point Beach, LLC, --- F.3d ---, No. 13-3851, 2014 WL 3895757 at

*4 (7th Cir. Aug. 11, 2014) (“[W]e do not hold that the arbitrator may…review and

overturn    [defendant’s]     revocation        of   [plaintiff’s]   unescorted   access

privileges….[T]he arbitrator may well find the decision unreviewable….But the

potential weakness of [plaintiff’s] claim on the merits is no defense to the

arbitrability of this dispute, as a threshold question.”).

      Consequently, we vacate the district court’s order denying IBEW’s Motion

to Compel Arbitration and remand the case to the district court with instructions to

determine whether FPL’s determination of “access rights” falls within the

arbitration provisions of IBEW and FPL’s collective bargaining agreement. See

Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1027 (11th Cir. 2003)

(citing Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452, 123 S. Ct. 2402, 2407

(2003) (holding that “gateway matters,” such as the scope of an arbitration

provision, should be determined by courts and not arbitrators)).

      VACATED and REMANDED WITH INSTRUCTION.


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