Davitashvili v. Grubhub Inc.

ENDORSED USDS SDNY

June 29, 2023 DOCUMENT

Granted. ELECTRONICALLY FILED

Hon. Lewis A. Kaplan SO ORDERED. DOC We a

United States District Judge . DATE FILED: _ 6-30-2023 |

United States Courthouse /s/ Lewis A. Kaplan

500 Pearl Street Lewis A. Kaplan, U.S.D.J.

New York, NY 10007

Dated: June 30, 2023

Re: = Mariam Davitashvili, et al. v. Grubhub Inc., et al., 20 Civ. 03000 (LAK) (S.D.N.Y.)

Dear Judge Kaplan,

We write jointly on behalf of the Plaintiffs and Defendants. Under Your Honor’s Rules of

Practice and Section 13.1 of this Court’s ECF Rules and Instructions, we respectfully submit this

joint letter motion based on last Friday’s Supreme Court decision in Coinbase v. Bielski, No. 22-

105 (June 23, 2023), a copy of which is attached. In light of Coinbase, the parties request that the

Court stay all proceedings until Defendants’ pending interlocutory appeals under 9 U.S.C. § 16(a)

are resolved. See Davitashvili v. Grubhub Inc., Nos. 23-521(L), 23-522(Con) (2d Cir.).

According to the Supreme Court in Coinbase, a “district court must stay its pre-trial and

trial proceedings while [an] interlocutory appeal” under “9 U.S. C. §16(a) ... is ongoing.” Slip op.

at 1 (abrogating Motorola Credit Corp. v. Uzan, 388 F. 3d 39, 53-54 (2d Cir. 2004)). The Court

explained that “[a]n appeal, including an interlocutory appeal, ‘divests the district court of its

control over those aspects of the case involved in the appeal.’” /d. at 3 (quoting Griggs v. Provident

Consumer Discount Co., 459 U.S. 56, 58 (1982)). The Court in Coinbase also held that when a

party appeals under 9 U.S.C. § 16(a), “the entire case is essentially ‘involved in the appeal.’” □□□

(quoting Griggs, 459 U.S. at 58).

Accordingly, Coinbase requires that this Court stay all proceedings with respect to the five

named plaintiffs subject to both Defendants’ 9 U.S.C. § 16(a) appeals. And since all plaintiffs in

this case assert the same allegations in support of the same claims, and since there 1s no plaintiff

not subject to either appeal who can seek to represent one of the three proposed classes, going

forward without all plaintiffs for all of the putative classes poses many risks. They include

duplicative and inefficient party, third-party, and expert discovery and multiple rounds of class

certification proceedings, all “wast[ing] scarce judicial resources.” Coinbase, slip op. at 6. Under

these circumstances, “the interests of justice [and] judicial economy thus would be served” by a

complete “stay [of] proceedings.” Freeman v. Complex Computing Co., 931 F. Supp. 1115, 1124

(S.D.N.Y. 1996) (Kaplan, J.), aff'd in relevant part, rev’d in part on other grounds and remanded,

119 F.3d 1044 (2d Cir. 1997).

For the foregoing reasons, the parties request that this Court stay all proceedings in this

case until Defendants’ pending interlocutory appeals under 9 U.S.C. §16(a) are resolved and the

Second Circuit issues the mandates to this Court. (The parties have also agreed to work to expedite

resolution of Defendants’ appeals.) If the Court grants this motion, the parties will provide the

Court with a proposed scheduling order within twenty-one days after the issuance of the mandates.

Sincerely,

s/ Eric S. Hochstadt

Eric S. Hochstadt

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

eric.hochstadt@weil.com

Counsel for Grubhub Inc. (d/b/a Seamless)

s/ Andrew A. Ruffino

Andrew A. Ruffino

Covington & Burling LLP

The New York Times Building

620 8th Avenue

New York, NY 10018

aruffino@cov.com

Counsel for Uber Technologies, Inc. and Postmates Inc.

s/ Edward Normand

Edward Normand

Freedman Normand Friedland LLP

99 Park Avenue, 19th Floor

New York, NY 10016

tnormand@fnf.law

Gregory A. Frank

FRANK LLP

305 Broadway, Suite 700

New York, New York 10007

info@frankllp.com

Counsel for Plaintiffs

(Slip Opinion) OCTOBER TERM, 2022 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done inconnectionwiththis case, at the time theopinion isissued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

SeeUnited States v.Detroit Timber & Lumber Co., 200U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

COINBASE, INC. v. BIELSKI

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 22–105. Argued March 21, 2023—Decided June 23, 2023

Abraham Bielski filed a putative class action on behalf of Coinbase users

alleging that Coinbase, an online currency platform, failed to replace

funds fraudulently taken from the users’ accounts. Because Coinbase’s

User Agreement provides for dispute resolution through binding arbi-

tration, Coinbase filed a motion to compel arbitration. The District

Court denied the motion. Coinbase then filed an interlocutory appeal

to the Ninth Circuit under the Federal Arbitration Act, 9 U. S. C.

§16(a), which authorizes an interlocutory appeal from the denial of a

motion to compel arbitration. Coinbase also moved the District Court

to stay its proceedings pending resolution of the interlocutory appeal.

The District Court denied Coinbase’s stay motion, and the Ninth Cir-

cuit likewise declined to stay the District Court’s proceedings pending

appeal.

Held: A district court must stay its proceedings while an interlocutory

appeal on the question of arbitrability is ongoing. Pp. 2–10.

(a)Section 16(a) does not say whether district court proceedings

must be stayed pending resolution of an interlocutory appeal. But

Congress enacted the provision against a clear background principle

prescribed by this Court’s precedents: An appeal, including an inter-

locutory appeal, “divests the district court of its control over those as-

pects of the case involved in the appeal.” Griggs v. Provident Consumer

Discount Co., 459 U. S. 56, 58. The Griggs principle resolves this case.

Because the question on appeal is whether the case belongs in arbitra-

tion or instead in the district court, the entire case is essentially “in-

volved in the appeal,” id., at 58, and Griggs dictates that the district

court stay its proceedings while the interlocutory appeal on arbitrabil-

ity is ongoing. Most courts of appeals to address this question, as well

as leading treatises, agree with that conclusion.

2 COINBASE, INC. v. BIELSKI

Syllabus

The common practice of staying district court proceedings during the

pendency of an interlocutory appeal taken under §16(a) reflects com-

mon sense. If the district court could move forward with pre-trial and

trial proceedings while the appeal on arbitrability was ongoing, then

many of the asserted benefits of arbitration (efficiency, less expense,

less intrusive discovery, and the like) would be irretrievably lost—even

if the court of appeals later concluded that the case actually had be-

longed in arbitration all along. Absent a stay, parties also could be

forced to settle to avoid the district court proceedings (including dis-

covery and trial) that they contracted to avoid through arbitration.

The Griggs rule avoids these detrimental results.

Congress’s longstanding practice reflects the Griggs rule. Given

Griggs, when Congress wants to authorize an interlocutory appeal and

to automatically stay the district court proceedings during that appeal,

Congress ordinarily need not say anything about a stay. By contrast,

when Congress wants to authorize an interlocutory appeal, but not to

automatically stay district court proceedings pending that appeal,

Congress typically says so. Since the creation of the modern courts of

appeals system in 1891, Congress has enacted multiple statutory “non-

stay” provisions. Pp. 2–7.

(b) Bielski’s arguments to overcome the Griggs principle are unper-

suasive. First, the courts of appeals possess robust tools to prevent

unwarranted delay and deter frivolous interlocutory appeals that an

automatic stay might otherwise encourage. Second, Congress included

explicit stay requirements in two other statutory provisions for rea-

sons particular to those statutes, not because Congress thought that

an interlocutory appeal did not ordinarily stay district court proceed-

ings. Third, the result here does not create a special, arbitration-pre-

ferring procedural rule, but simply subjects arbitrability appeals to the

same stay principles that courts apply in other analogous contexts

where an interlocutory appeal is authorized. Fourth, experience shows

that ordinary discretionary stay factors would not adequately protect

parties’ rights to an interlocutory appellate determination of arbitra-

bility. In any event, the background Griggs rule applies regardless of

how often courts might otherwise grant stays under the ordinary dis-

cretionary stay factors. Fifth, while the Court has recognized that

questions of arbitrability are severable from merits questions, the sole

issue here is whether the district court’s authority to consider a case is

“involved in the appeal” when an appellate court considers the thresh-

old question of arbitrability, Griggs, 459 U. S., at 58. The answer is

yes. Pp. 7–10.

Reversed and remanded.

Cite as: 599 U. S. ____ (2023) 3

Syllabus

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and ALITO, GORSUCH, and BARRETT, JJ., joined. JACKSON, J., filed

a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined in full,

and in which THOMAS, J., joined as to Parts II, III and IV.

Cite as: □□□ U.S. ___s (2023)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

United States Reports. Readers are requested to notify the Reporter of

Decisions, Supreme Court of the United States, Washington, D. C. 20543,

pio@supremecourt.gov, of any typographical or other formal errors.

SUPREME COURT OF THE UNITED STATES

No. 22-105

COINBASE, INC., PETITIONER v. ABRAHAM BIELSKI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 23, 2023]

JUSTICE KAVANAUGH delivered the opinion of the Court.

When a federal district court denies a motion to compel

arbitration, the losing party has a statutory right to an

interlocutory appeal. See 9 U.S.C. §16(a). The sole

question here is whether the district court must stay its

pre-trial and trial proceedings while the interlocutory

appeal is ongoing. The answer is yes: The district court

must stay its proceedings.

Coinbase operates an online platform on which users can

buy and sell eryptocurrencies and government-issued

currencies. When creating a Coinbase account, individuals

agree to the terms in Coinbase’s User Agreement. As

relevant here, the User Agreement contains an arbitration

provision, which directs that disputes arising under the

agreement be resolved through binding arbitration.

This case concerns a putative class action filed against

Coinbase in the U.S. District Court for the Northern

District of California. Abraham Bielski sued on behalf of

Coinbase users who allege that Coinbase failed to replace

funds fraudulently taken from the users’ accounts.

The District Court denied Coinbase’s motion to compel

2 COINBASE, INC. v. BIELSKI

Opinion of the Court

arbitration. Coinbase then filed an interlocutory appeal to

the U. S. Court of Appeals for the Ninth Circuit under 9

U. S. C. §16(a).1 Section 16(a) authorizes an interlocutory

appeal from the denial of a motion to compel arbitration.

Coinbase also moved to stay District Court proceedings

pending resolution of the arbitrability issue on appeal. The

District Court declined to stay its proceedings. After

receiving Coinbase’s motion for a stay, the Ninth Circuit

likewise declined to stay the District Court’s proceedings.

The Ninth Circuit followed its precedent, under which an

appeal from the denial of a motion to compel arbitration

does not automatically stay district court proceedings. See

Britton v. Co-op Banking Group, 916 F. 2d 1405, 1412

(1990). By contrast, however, most other Courts of Appeals

to address the question have held that a district court must

stay its proceedings while the interlocutory appeal on the

question of arbitrability is ongoing. E.g., Bradford-Scott

Data Corp. v. Physician Computer Network, Inc., 128 F. 3d

504, 506 (CA7 1997).

To resolve that disagreement among the Courts of

Appeals, we granted certiorari. 598 U. S. ___ (2022).

II

The Federal Arbitration Act governs arbitration

agreements. In 1988, Congress passed and President

Reagan signed an amendment to the Act; the amendment

is codified at 9 U. S. C. §16(a). Under §16(a), when a

——————

1As relevant, the text of §16(a) provides:

“An appeal may be taken from . . . 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.”

Cite as: 599 U. S. ____ (2023) 3

Opinion of the Court

district court denies a party’s motion to compel arbitration,

that party may take an interlocutory appeal. Section 16(a)

creates a rare statutory exception to the usual rule that

parties may not appeal before final judgment. See Mohawk

Industries, Inc. v. Carpenter, 558 U. S. 100, 108–109 (2009).

Notably, Congress provided for immediate interlocutory

appeals of orders denying—but not of orders granting—

motions to compel arbitration.

The sole question before this Court is whether a district

court must stay its proceedings while the interlocutory

appeal on arbitrability is ongoing. The answer is yes.

Section 16(a) does not say whether the district court

proceedings must be stayed. But Congress enacted §16(a)

against a clear background principle prescribed by this

Court’s precedents: An appeal, including an interlocutory

appeal, “divests the district court of its control over those

aspects of the case involved in the appeal.” Griggs v.

Provident Consumer Discount Co., 459 U. S. 56, 58 (1982).

That Griggs principle reflects a longstanding tenet of

American procedure. See Hovey v. McDonald, 109 U. S.

150, 157 (1883); see also Price v. Dunn, 587 U. S. ___, ___

(2019) (THOMAS, J., joined by ALITO and GORSUCH, JJ.,

concurring in denial of certiorari) (slip op., at 7) (describing

Griggs principle as “well settled”); Marrese v. American

Academy of Orthopaedic Surgeons, 470 U. S. 373, 379

(1985) (“In general, filing of a notice of appeal confers

jurisdiction on the court of appeals and divests the district

court of control over those aspects of the case involved in

the appeal”).

The Griggs principle resolves this case. Because the

question on appeal is whether the case belongs in

arbitration or instead in the district court, the entire case

is essentially “involved in the appeal.” 459 U. S., at 58. As

Judge Easterbrook cogently explained, when a party

appeals the denial of a motion to compel arbitration,

whether “the litigation may go forward in the district court

4 COINBASE, INC. v. BIELSKI

Opinion of the Court

is precisely what the court of appeals must decide.”

Bradford-Scott Data Corp. v. Physician Computer Network,

Inc., 128 F. 3d 504, 506 (CA7 1997). Stated otherwise, the

question of whether “the case should be litigated in the

district court . . . is the mirror image of the question

presented on appeal.” Id., at 505. Here, as elsewhere, it

“makes no sense for trial to go forward while the court of

appeals cogitates on whether there should be one.” Apostol

v. Gallion, 870 F. 2d 1335, 1338 (CA7 1989). In short,

Griggs dictates that the district court must stay its

proceedings while the interlocutory appeal on arbitrability

is ongoing.2

Most courts of appeals to address the question in the

§16(a) context have reached that same conclusion. E.g.,

Blinco v. Green Tree Servicing, LLC, 366 F. 3d 1249, 1253

(CA11 2004) (“[I]t makes little sense for the litigation to

continue in the district court while the appeal is pending”).3

Leading treatises agree that a district court should stay its

proceedings while the interlocutory appeal on arbitrability

is ongoing. For example, Moore’s treatise states that a “stay

in these circumstances” is “the sounder approach” and “is

consistent with the general [Griggs] principle that a district

court should not exercise jurisdiction over those aspects of

the case that are involved in the appeal.” 19 J. Moore, D.

——————

2Coinbase concedes that the district court may still proceed with

matters that are not involved in the appeal, such as the awarding of costs

and attorney’s fees. Brief for Petitioner 21; see also 16A C. Wright, A.

Miller, E. Cooper, & C. Struve, Federal Practice and Procedure §3949.1,

pp. 68–69 (5th ed. 2019).

3See also Levin v. Alms & Assoc., Inc., 634 F. 3d 260, 266 (CA4 2011);

Ehleiter v. Grapetree Shores, Inc., 482 F. 3d 207, 215, n. 6 (CA3 2007);

McCauley v. Halliburton Energy Servs., Inc., 413 F. 3d 1158, 1162–1163

(CA10 2005); Bombardier Corp. v. National R. Passenger Corporation,

333 F. 3d 250, 252 (CADC 2003); Bradford-Scott Data Corp. v. Physician

Computer Network, Inc., 128 F. 3d 504, 505–507 (CA7 1997); but see, e.g.,

Weingarten Realty Investors v. Miller, 661 F. 3d 904, 907–910 (CA5

2011).

Cite as: 599 U. S. ____ (2023) 5

Opinion of the Court

Coquillette, G. Joseph, G. Vairo, & C. Varner, Moore’s

Federal Practice §203.12[3][a] (3d ed. 2022). Similarly, the

Wright and Miller treatise endorses the automatic stay

requirement in arbitration cases. The treatise explains

that a “complete stay of district-court proceedings pending

appeal from a refusal to order arbitration is desirable”

because “[c]ontinued trial-court proceedings pending

appeal could lead to an entirely wasted trial if arbitration

is ordered on appeal.” 15B C. Wright, A. Miller, & E.

Cooper, Federal Practice and Procedure §3914.17, p. 7 (2d

ed., Supp. 2022). In the Circuits that have considered the

issue in the analogous contexts of qualified immunity and

double jeopardy, moreover, district courts likewise must

automatically stay their proceedings while the

interlocutory appeal is ongoing.4 Similarly, as Bielski

acknowledges, courts have held that the Griggs principle

applies to those aspects of the case involved in a certified

interlocutory appeal under 28 U. S. C. §1292(b).5

The common practice in §16(a) cases, therefore, is for a

district court to stay its proceedings while the interlocutory

appeal on arbitrability is ongoing. That common practice

reflects common sense. Absent an automatic stay of district

court proceedings, Congress’s decision in §16(a) to afford a

right to an interlocutory appeal would be largely nullified.

——————

4 E.g., United States v. Montgomery, 262 F. 3d 233, 239–240 (CA4 2001)

(double jeopardy); United States v. LaMere, 951 F. 2d 1106, 1108 (CA9

1991) (same); United States v. Grabinski, 674 F. 2d 677, 679 (CA8 1982)

(same); United States v. Dunbar, 611 F. 2d 985, 988–989 (CA5 1980) (en

banc) (same); Chuman v. Wright, 960 F. 2d 104, 105 (CA9 1992)

(qualified immunity); Yates v. Cleveland, 941 F. 2d 444, 448–449 (CA6

1991) (same); Apostol v. Gallion, 870 F. 2d 1335, 1338 (CA7 1989) (same);

Stewart v. Donges, 915 F. 2d 572, 575–576 (CA10 1990) (both).

5See Tr. of Oral Arg. 60–61; see also Green Leaf Nursery v. E. I. DuPont

De Nemours and Co., 341 F. 3d 1292, 1309 (CA11 2003); Los Angeles v.

Santa Monica Baykeeper, 254 F. 3d 882, 885–886 (CA9 2001); Dayton

Independent School Dist. v. U. S. Mineral Prods. Co., 906 F. 2d 1059,

1063–1064 (CA5 1990).

6 COINBASE, INC. v. BIELSKI

Opinion of the Court

If the district court could move forward with pre-trial and

trial proceedings while the appeal on arbitrability was

ongoing, then many of the asserted benefits of arbitration

(efficiency, less expense, less intrusive discovery, and the

like) would be irretrievably lost—even if the court of

appeals later concluded that the case actually had belonged

in arbitration all along. Absent a stay, parties also could be

forced to settle to avoid the district court proceedings

(including discovery and trial) that they contracted to avoid

through arbitration. That potential for coercion is

especially pronounced in class actions, where the possibility

of colossal liability can lead to what Judge Friendly called

“blackmail settlements.” H. Friendly, Federal Jurisdiction:

A General View 120 (1973).

As Judge Easterbrook stated, continuation of proceedings

in the district court “largely defeats the point of the appeal.”

Bradford-Scott, 128 F. 3d, at 505. A right to interlocutory

appeal of the arbitrability issue without an automatic stay

of the district court proceedings is therefore like a lock

without a key, a bat without a ball, a computer without a

keyboard—in other words, not especially sensible.

From the Judiciary’s institutional perspective, moreover,

allowing a case to proceed simultaneously in the district

court and the court of appeals creates the possibility that

the district court will waste scarce judicial resources—

which could be devoted to other pressing criminal or civil

matters—on a dispute that will ultimately head to

arbitration in any event. That scenario represents the

“worst possible outcome” for parties and the courts:

litigating a dispute in the district court only for the court of

appeals to “reverse and order the dispute arbitrated.” Id.,

at 506. The Griggs rule avoids that detrimental result.

Importantly, Congress’s longstanding practice both

reflects and reinforces the Griggs rule. When Congress

wants to authorize an interlocutory appeal and to

automatically stay the district court proceedings during

Cite as: 599 U. S. ____ (2023) 7

Opinion of the Court

that appeal, Congress need not say anything about a stay.

At least absent contrary indications, the background Griggs

principle already requires an automatic stay of district

court proceedings that relate to any aspect of the case

involved in the appeal. By contrast, when Congress wants

to authorize an interlocutory appeal, but not to

automatically stay district court proceedings pending that

appeal, Congress typically says so. Since the creation of the

modern courts of appeals system in 1891, Congress has

enacted multiple statutory “non-stay” provisions.6 Indeed,

Congress enacted a “non-stay” provision the day before

enacting §16(a) in 1988. See 102 Stat. 4120 (“Neither the

application for, nor the granting of, an appeal . . . shall stay

proceedings in the Court of Veterans Appeals”).

In short, the Griggs rule requires that a district court

stay its proceedings while the interlocutory appeal on the

question of arbitrability is ongoing.

III

To overcome the Griggs principle, Bielski advances five

main arguments. None is persuasive.

First, Bielski contends that an automatic stay would

encourage frivolous appeals that would improperly delay

district court proceedings. To begin with, Bielski has not

established that frivolous appeals frequently occur in the

Circuits that have long applied the Griggs principle in

——————

6Act of Apr. 3, 1926, ch. 102, 44 Stat. 233–234; Act of Feb. 28, 1927,

ch. 228, id., at 1261; Act of Sept. 2, 1958, Pub. L. 85–919, 72 Stat. 1770;

Federal Courts Improvement Act of 1982, §125, 96 Stat. 37, 28 U. S. C.

§1292(d)(3); Tax Reform Act of 1986, §1558, 100 Stat. 2757–2758, 26

U. S. C. §7482(a)(2)(A); Veterans’ Judicial Review Act, 102 Stat. 4120, as

amended, 38 U. S. C. §7292(b)(1); Bankruptcy Abuse Prevention and

Consumer Protection Act of 2005, 119 Stat. 203, 28 U. S. C.

§158(d)(2)(D); Puerto Rico Oversight, Management, and Economic

Stability Act, §306, 130 Stat. 582, 48 U. S. C. §2166(e)(6); see also

Judiciary Act of 1891, §7, 26 Stat. 828; Act of June 6, 1900, ch. 803, 31

Stat. 660–661; Fed. Rule Civ. Proc. 23(f ).

8 COINBASE, INC. v. BIELSKI

Opinion of the Court

arbitration cases. Cf. Henry Schein, Inc. v. Archer & White

Sales, Inc., 586 U. S. ___, ___ (2019) (slip op., at 8). Nor does

Bielski argue that Coinbase’s appeal in this case is

frivolous. Importantly, moreover, the courts of appeals

possess robust tools to prevent unwarranted delay and

deter frivolous interlocutory appeals. For example, a party

can ask the court of appeals to summarily affirm, to

expedite an interlocutory appeal, or to dismiss the

interlocutory appeal as frivolous. In addition, nearly every

circuit has developed a process by which a district court

itself may certify that an interlocutory appeal is frivolous.

Brief for Petitioner 51; see also Arthur Andersen LLP v.

Carlisle, 556 U. S. 624, 629 (2009) (“Appellate courts can

streamline the disposition of meritless claims and even

authorize the district court’s retention of ” a case “when an

appeal is certified as frivolous”). Finally, a court of appeals

may impose sanctions where appropriate; the possibility of

sanctions also helps deter frivolous appeals. See Fed. Rule

App. Proc. 38; Arthur Andersen, 556 U. S., at 629.

Second, Bielski contrasts §16(a) with two other statutory

provisions that contain an explicit stay requirement—§3 of

the Federal Arbitration Act and §1292(d)(4) of Title 28.

Bielski suggests that Congress would not have included

those explicit stay requirements in §3 and §1292(d)(4)

unless Congress thought that an interlocutory appeal did

not ordinarily stay district court proceedings. Bielski is

wrong.

Section 3 of the Act provides for a stay of court

proceedings pending arbitration, not pending an appeal.

That situation does not fall within the Griggs rule. No

background principle requires automatic stays of district

court proceedings pending arbitration. In order to

automatically stay court proceedings pending arbitration in

those cases, Congress therefore affirmatively codified a stay

requirement.

As to §1292(d)(4): When Congress added §1292(d)(4)’s

Cite as: 599 U. S. ____ (2023) 9

Opinion of the Court

stay requirement in 1988, the relevant subsection already

contained a provision, §1292(d)(3), that expressly made

stays of proceedings in certain courts discretionary rather

than mandatory. To avoid any misinterpretation of

§1292(d)(4) because of that preexisting language in

§1292(d)(3), Congress specified the right to an automatic

stay pending appeal in §1292(d)(4). That unusual

circumstance does not diminish the operation of the Griggs

rule in the context of arbitrability appeals.

Third, Bielski contends that requiring an automatic stay

would create a special, arbitration-preferring procedural

rule. That is incorrect. In fact, Bielski’s proposed approach

would disfavor arbitration. Applying the Griggs rule here

simply subjects arbitrability appeals to the same stay

principles that courts apply in other analogous contexts

where an interlocutory appeal is authorized, including

qualified immunity and double jeopardy. Bielski further

points to forum selection clauses as an analogy. But unlike

§16(a) arbitrability appeals, Congress has not created a

right to an interlocutory appeal for cases involving forum

selection clauses. So a stay in the forum selection context

could be required only in those cases where there is a

certified §1292(b) interlocutory appeal of the forum

selection issue.

Fourth, Bielski suggests that there is no need for an

automatic stay because the ordinary discretionary stay

factors would adequately protect parties’ rights to an

interlocutory appellate determination of arbitrability. To

begin with, experience shows that Bielski is incorrect.

District courts and courts of appeals applying the usual

four-factor standard for a discretionary stay often deny

stays in §16(a) appeals because courts applying that test

often do not consider litigation-related burdens (here, from

the continued District Court proceedings) to constitute

irreparable harm. See Nken v. Holder, 556 U. S. 418, 434–

435 (2009); FTC v. Standard Oil Co. of Cal., 449 U. S. 232,

10 COINBASE, INC. v. BIELSKI

Opinion of the Court

244 (1980) (“Mere litigation expense, even substantial and

unrecoupable cost, does not constitute irreparable injury”

(internal quotation marks omitted)); App. to Pet. for Cert.

43a (District Court in Bielski stating that “[m]ere litigation

expenses do not generally constitute irreparable injury” for

purposes of stay pending appeal). In any event, the

background Griggs rule applies regardless of how often

courts might otherwise grant stays under the ordinary

discretionary stay factors.

Fifth, Bielski relies on this Court’s statement that

questions of arbitrability are “severable from the merits of

the underlying disputes.” Moses H. Cone Memorial

Hospital v. Mercury Constr. Corp., 460 U. S. 1, 21 (1983).

But the sole issue here is whether the district court’s

authority to consider a case is “involved in the appeal” when

an appellate court considers the threshold question of

arbitrability. Griggs, 459 U. S., at 58. The answer is yes,

and Moses H. Cone says nothing to the contrary.

* * *

We conclude that, after Coinbase appealed from the

denial of its motion to compel arbitration, the District Court

was required to stay its proceedings. On remand, we

anticipate that the Ninth Circuit here, as we anticipate in

§16(a) appeals more generally, will proceed with

appropriate expedition when considering Coinbase’s

interlocutory appeal from the denial of the motion to compel

arbitration. We reverse the judgment of the Court of

Appeals and remand the case for further proceedings

consistent with this opinion.7

It is so ordered.

——————

7The Court’s judgment today pertains to respondent Abraham Bielski.

The writ of certiorari as to respondents David Suski et al. is dismissed

as improvidently granted.

Cite as: 599U.S.___- (2023)

JACKSON, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 22-105

COINBASE, INC., PETITIONER v. ABRAHAM BIELSKI

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 23, 2023]

JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR and

JUSTICE KAGAN join, and with whom JUSTICE THOMAS joins

as to Parts II, III, and IV, dissenting.

When a federal court of appeals conducts interlocutory

review of a trial court order, the rest of the case remains at

the trial court level. Usually, the trial judge then makes a

particularized determination upon request, based on the

facts and circumstances of that case, as to whether the re-

maining part of the case should continue unabated or be

paused (stayed) pending appeal. This discretionary deci-

sionmaking promotes procedural fairness because it allows

for a balancing of all relevant interests. See Nken v. Holder,

556 U.S. 418, 434 (2009).

Today, the Court departs from this traditional approach.

It holds that, with respect to an interlocutory appeal of a

trial court order denying arbitration, a trial court must al-

ways “stay its pre-trial and trial proceedings while the in-

terlocutory appeal is ongoing.” Ante, at 1. In other words,

in this context, the Court sees fit to impose a mandatory

general stay of trial court proceedings.

This mandatory-general-stay rule for interlocutory arbi-

trability appeals comes out of nowhere. No statute imposes

it. Nor does any decision of this Court. Yet today’s majority

invents a new stay rule perpetually favoring one class of

litigants—defendants seeking arbitration. Those defend-

ants will now receive a stay even when, according to the

2 COINBASE, INC. v. BIELSKI

JACKSON, J., dissenting

usual equitable analysis, there is no good reason for one.

And, in reaching this result, the Court concludes for the

first time that an interlocutory appeal about one matter (ar-

bitrability) bars the district court from proceeding on an-

other (the merits). That logic has such significant implica-

tions for federal litigation that the majority itself shies

away from the Pandora’s box it may have opened.

I see no basis here for wresting away the discretion tra-

ditionally entrusted to the judge closest to a case. I respect-

fully dissent.

I

Congress did not impose the mandatory-general-stay rule

that the majority adopts today.

Start with the governing statute. Congress addressed the

kind of interlocutory appeals at issue here in 9 U. S. C.

§16—the section of the Federal Arbitration Act it enacted

to govern “Appeals.” 102 Stat. 4671 (amending the Federal

Arbitration Act, 9 U. S. C. §1 et seq.). Section 16 provides

that “[a]n appeal may be taken from” specified orders and

decisions, and “an appeal may not be taken from” others.

The appeals that §16 authorizes include interlocutory ap-

peals of orders denying requests for arbitration.

§§16(a)(1)(A)–(C).

But nowhere did Congress provide that such an interloc-

utory appeal automatically triggers a general stay of pre-

trial and trial proceedings. As the majority opinion admits,

§16 never even mentions a stay pending appeal. Ante, at 3.

Even beyond that, related provisions confirm that Con-

gress imposed no mandatory general stay in §16 appeals.

“Where Congress includes particular language in one sec-

tion of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intention-

ally and purposely in the disparate inclusion or exclusion.”

Nken, 556 U. S., at 430 (alterations and internal quotation

marks omitted). Congress did that here—twice.

Cite as: 599 U. S. ____ (2023) 3

JACKSON, J., dissenting

First, Congress expressly mandated a general interlocu-

tory stay in another provision of the same 1988 law that

enacted §16. See 102 Stat. 4652, 4670–4671. Like §16, that

other provision—codified at 28 U. S. C. §1292(d)(4)—au-

thorizes interlocutory appeals. See §1292(d)(4)(A). But un-

like §16, the text of that other provision specifies that, upon

an interlocutory appeal, “proceedings shall be . . . stayed

until the appeal has been decided.” §1292(d)(4)(B). This

resembles the rule the majority adopts today for §16 ap-

peals. Yet Congress omitted it from §16, while simultane-

ously imposing it in §1292(d)(4).

Second, Congress expressly mandated a general interloc-

utory stay in another provision of the Federal Arbitration

Act. Section 3 pertains to a circumstance in which the trial

court is “satisfied” that an issue should be referred to arbi-

tration. 9 U. S. C. §3. In such a case, the statute expressly

provides that the trial court “shall on application of one of

the parties stay the trial of the action until such arbitration

has been had.” Ibid. (emphasis added). Again, the contrast

with §16 is stark. Congress specified a mandatory general

stay of trial court proceedings in §3 (when the trial court

determines that arbitration is warranted) but not §16(a)

(when the court determines that arbitration is unwar-

ranted).

The majority opinion waves away these mandatory-gen-

eral-stay provisions by jerry-rigging explanations for why

Congress mandated those stays expressly without doing so

in §16. Ante, at 8–9. But the point remains: Congress fo-

cused on stays when crafting the 1988 law and the Federal

Arbitration Act. And when it intended to mandate interloc-

utory stays, it said so expressly. Nothing stopped Congress

from doing so in §16—yet it chose not to. This underscores

that §16 does not mandate a stay.1

——————

1The majority’s explanation for why Congress mandated a stay in 28

4 COINBASE, INC. v. BIELSKI

JACKSON, J., dissenting

Given all this, it is no surprise that Congress’s enact-

ments barely figure into the majority opinion. The manda-

tory-general-stay rule is so untethered from §16 that the

statutory text has no role in the Court’s reasoning.

And when Congress’s work finally does take the stage

near the end of the Court’s analysis, it plays a minor part.

See ante, at 6–7. The Court notes that other statutes ex-

pressly provide that appeals do not automatically stay dis-

trict court proceedings. Ante, at 7, and n. 6. From this, the

Court tries to draw an across-the-board inference that, un-

less Congress expressly disavows the majority’s manda-

tory-general-stay rule, that rule applies.

The Court’s inference fails. The statutes that the major-

——————

U. S. C. §1292(d)(4) also makes no sense. According to the majority, Con-

gress usually remains silent when it intends to mandate a stay. Ante, at

6–7, 8–9. Congress expressly imposed a mandatory stay in §1292(d)(4),

the majority says, only because a pre-existing provision, §1292(d)(3),

would otherwise have made stays in §1292(d)(4) appeals discretionary.

Ante, at 8–9.

But that last point holds no water. Paragraph (3) has no bearing on

paragraph (4), because these two provisions govern different kinds of ap-

peals.

Specifically, paragraph (3) governs certain appeals by permission,

while paragraph (4) governs a separate set of appeals as of right. Para-

graph (3) addresses events unique to permissive appeals: “Neither the

application for nor the granting of an appeal” stays trial court proceed-

ings. §1292(d)(3) (emphasis added). Paragraph (3) thus corresponds to

paragraphs (1) and (2), which authorize permissive appeals “if applica-

tion is made” and granted. §§1292(d)(1)–(2). Meanwhile, paragraph (4)

separately authorizes certain as-of-right appeals, §1292(d)(4)(A), and it

imposes mandatory stays in such appeals, §1292(d)(4)(B). In an appeal

as of right under paragraph (4), paragraph (3) never kicks in, because

there is no “application for” or “granting of” an appeal, §1292(d)(3).

Thus, the majority’s story—that Congress needed express stay lan-

guage to avoid overlap with paragraph (3)—turns on a red herring.

There is no such overlap. Instead, only the more straightforward expla-

nation remains: Congress imposed a mandatory general stay in

§1292(d)(4)—but not 9 U. S. C. §16—because it intended such a stay un-

der the former but not the latter.

Cite as: 599 U. S. ____ (2023) 5

JACKSON, J., dissenting

ity points to have nothing to do with arbitration or §16 (un-

like the two provisions discussed above, which were enacted

in the same 1988 law as §16 and codified alongside §16 in

the Federal Arbitration Act, respectively, supra, at 3).

Moreover, and in any event, the majority’s cited statutes

do not support the majority’s mandatory-general-stay rule.

The majority invokes statutes that expressly preclude au-

tomatic stays of all trial court proceedings. But if the ma-

jority is correct that Congress intended the opposite when

a statute is silent, then stays of all trial court proceedings

would be required. Yet, the majority’s own holding does not

go that far. See ante, at 4, n. 2. Instead, the majority re-

quires stays for some proceedings (those related to the mer-

its) but not others (those related to costs and fees), ibid.—a

line that appears nowhere in the majority’s cited statutes.

At the end of the day, the best the majority can do is point

to a smattering of provisions that do not contain the rule

that the majority adopts. And those provisions do not even

relate to §16 or the majority’s rule (staying litigation gener-

ally but not proceedings on costs and fees). Neither those

statutes, nor any other, imposes on arbitrability appeals the

stay rule that the Court announces.

II

Unable to locate its rule in a statute, the majority opinion

pivots to “background principle[s].” Ante, at 3. But there is

no background mandatory-general-stay rule.

To the contrary, the background rule is that courts have

case-by-case discretion regarding whether or not to issue a

stay. “[T]he power to stay proceedings is incidental to the

power inherent in every court to control the disposition of

the causes on its docket.” Landis v. North American Co.,

299 U. S. 248, 254 (1936). That power is discretionary—it

“calls for the exercise of judgment, which must weigh com-

peting interests” in each particular case. Id., at 254–255.

6 COINBASE, INC. v. BIELSKI

JACKSON, J., dissenting

One key to this discretionary-stay tradition is its “supple-

ness of adaptation to varying conditions.” Id., at 256. A

stay “is not a matter of right” and cannot be imposed “re-

flexively.” Nken, 556 U. S., at 427 (internal quotation

marks omitted).

That has long been the default rule. A court’s discretion

“to grant a stay pending review” is “firmly imbedded in our

judicial system, consonant with the historic procedures of

federal appellate courts.” Ibid. (internal quotation marks

omitted). It is “a power as old as the judicial system of the

nation.” Ibid. (internal quotation marks omitted); see 28

U. S. C. §1651(a) (All Writs Act, originally enacted in 1789,

1 Stat. 81–82).

Significantly for present purposes, discretionary stays

are the default for interlocutory appeals in particular—and

this dates back to the first federal interlocutory-appeal stat-

ute in 1891. Judiciary Act of 1891, §7, 26 Stat. 828; see 15A

C.Wright, A. Miller, & E. Cooper, Federal Practice and Pro-

cedure §3906, p. 346 (3d ed. 2022). There, Congress estab-

lished that “proceedings . . . in the court below shall not be

stayed unless otherwise ordered by that court during the

pendency of such appeal.” §7, 26 Stat. 828 (emphasis

added).

That statute cemented a background discretionary-stay

rule that governed even where Congress was silent—as this

Court has repeatedly recognized. Shortly after the 1891

Act, a case arose under conditions in which the Act was si-

lent about whether a stay should issue. In re Haberman

Mfg. Co., 147 U. S. 525, 530 (1893) (finding “no express pro-

vision” on point). This Court applied the background rule:

“[T]he Circuit Court had a discretion to grant or refuse” a

stay. Ibid. Another case of statutory silence arose a few

years later. In re McKenzie, 180 U. S. 536, 550–551 (1901).

Again, this Court reiterated federal courts’ “inherent power

. . . to stay or supersede proceedings on appeal” from an in-

terlocutory order. Id., at 551. As this Court summarized in

Cite as: 599 U. S. ____ (2023) 7

JACKSON, J., dissenting

yet another case, the rule is that the trial court has “author-

ity” during an interlocutory appeal “to take further proceed-

ings in the cause, unless in its discretion it orders them to

be stayed, pending the appeal.” Smith v. Vulcan Iron

Works, 165 U. S. 518, 525 (1897). That authority is “recog-

nized” by the 1891 Act but existed already as a traditional

matter, “often exercised by other courts of chancery.” Ibid.

This was the background against which Congress en-

acted §16. And—importantly—courts understood stays as

discretionary with respect to interlocutory appeals concern-

ing arbitrability. Before Congress enacted §16, parties

brought interlocutory arbitrability appeals under other

sources of appellate jurisdiction, and courts treated stays as

discretionary, not mandatory.2 Yet, according to the major-

ity, Congress sought to displace that common understand-

ing when it enacted §16—without saying anything at all

about stays pending appeal.

Even setting all that aside, the majority opinion’s reli-

ance on a “background” rule, ante, at 3, still fails. The ma-

jority has not shown that its own rule (the mandatory-gen-

eral-stay rule) existed as a background matter when

Congress enacted §16 in 1988. Indeed, the majority opinion

does not identify a single case in which this Court imposed

a mandatory general stay of pre-trial and trial proceedings

pending an interlocutory appeal. Not in an arbitration

case. Not in an analogous case about the proper adjudica-

tory forum for a dispute. Not in any interlocutory appeal at

all.

——————

2See, e.g., Pearce v. E. F. Hutton Group, Inc., 828 F. 2d 826, 829 (CADC

1987); Maxum Foundations, Inc. v. Salus Corp., 779 F. 2d 974, 977 (CA4

1985); Matterhorn, Inc. v. NCR Corp., 727 F. 2d 629, 630 (CA7 1984);

Lummus Co. v. Commonwealth Oil Refining Co., 273 F. 2d 613, 613–614

(CA1 1959) (per curiam); Bernhardt v. Polygraphic Co. of Am., 235 F. 2d

209, 211 (CA2 1956) (per curiam).

8 COINBASE, INC. v. BIELSKI

JACKSON, J., dissenting

III

Because neither the statute nor any background law

states that an interlocutory appeal over arbitrability trig-

gers a mandatory general stay of trial court proceedings,

the majority opinion resorts to spinning such a rule from a

single sentence in Griggs v. Provident Consumer Discount

Co., 459 U. S. 56 (1982) (per curiam). But Griggs expresses

a far narrower principle, and is thus insufficient to support

the majority’s mandatory-general-stay rule.

Griggs stands for a modest proposition: Two courts

should avoid exercising control over the same order or judg-

ment simultaneously. The problem Griggs identifies is the

“danger a district court and a court of appeals would be sim-

ultaneously analyzing the same judgment.” Id., at 59. The

cure Griggs prescribes is that “[t]he filing of a notice of ap-

peal . . . divests the district court of its control over those

aspects of the case involved in the appeal.” Id., at 58.

And the reason is simple. Two courts simultaneously an-

alyzing the same judgment could step on each other’s toes.

It would interfere with the appellate court’s review of an

order if the district court modified that order mid-appeal.

Instead, an order should be reviewed by one court at a time.

This notion of “one order, one reviewing court” is all that

was at issue in Griggs. Griggs concerned a party that tried

to appeal a judgment while the District Court was still con-

sidering whether to alter that same judgment. Id., at 56.

The Court held that the appeal needed to wait until after

the District Court’s work on that judgment was done. Id.,

at 60–61. This result, which followed from the Federal

Rules of Appellate Procedure, was necessary to “avoi[d]” the

situation “in which district courts and courts of appeals

would both have had the power to modify the same judg-

ment.” Id., at 60 (emphasis added).

Properly understood and applied here, Griggs divests the

district court of control over only a narrow slice of the case.

The interlocutory appeal addresses an order declining to

Cite as: 599 U. S. ____ (2023) 9

JACKSON, J., dissenting

compel arbitration. Griggs merely prevents the district

court from modifying that order—i.e., Griggs prevents the

district judge from revisiting whether to compel arbitration

while the appeal is pending. Griggs does not stop the dis-

trict court from proceeding on matters other than arbitra-

bility.

The majority opinion, however, transmogrifies Griggs

into a sweeping stay of “pre-trial and trial proceedings” on

not just arbitrability, but also the merits. Ante, at 1. Ac-

cording to the majority, if the question on appeal is

“whether the litigation may go forward in the district

court,” then the district court loses control over “the entire

case.” Ante, at 3–4 (emphasis added; internal quotation

marks omitted).

That rule far surpasses the statement in Griggs—the sole

statement on which the majority relies—that a district

court loses “control over those aspects of the case involved

in the appeal.” 459 U. S., at 58; ante, at 3. Only the arbi-

trability order is on appeal, not the merits. And those mat-

ters are distinct. As this Court recognized (before Congress

enacted §16), “arbitrability” is “easily severable from the

merits of the underlying disputes.” Moses H. Cone Memo-

rial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 21

(1983).

The majority cannot justify why it treats these “easily

severable” matters as intertwined in an arbitrability ap-

peal. “[T]he question on appeal,” as the majority opinion

correctly identifies, is “whether the case belongs in arbitra-

tion.” Ante, at 3. But the questions remaining before the

district court are different: whether the claims have merit,

whether the parties are entitled to the discovery they seek,

and so on. Proceedings on those questions would not inter-

fere with the appellate court’s review of the arbitrability or-

der. Those proceedings, in other words, do not implicate the

Griggs principle, which addresses the “danger a district

10 COINBASE, INC. v. BIELSKI

JACKSON, J., dissenting

court and a court of appeals would be simultaneously ana-

lyzing the same judgment.” 459 U. S., at 59.

The Court today expands Griggs beyond what the Con-

gress that enacted §16 could have foreseen, let alone si-

lently incorporated. Indeed, the majority can identify no

other time this Court wielded Griggs to mandate a stay of

all merits proceedings just because a distinct procedural

question was on appeal.

In fact, the majority’s supercharged version of Griggs con-

tradicts its own account of Congress’s intent. Consider the

statutes that the majority points to as models of how Con-

gress would reject a mandatory-general-stay rule. Ante, at

6–7, and n. 6; see supra, at 4–5. Under those statutes, the

majority says, Congress intends that an interlocutory ap-

peal does “not . . . automatically stay district court proceed-

ings.” Ante, at 7. Yet, the majority also seemingly accepts

that under those statutes, “the Griggs principle applies.”

Ante, at 5. And per “the Griggs principle” as the majority

sees it, in some cases an interlocutory appeal does automat-

ically stay district court proceedings. Ante, at 3–4. So a

mandatory general stay is thus both prohibited (by the stat-

utory text) and required (by the majority’s view of Griggs).3

As this contradiction underscores, the majority’s holding is

untethered from any statute and any existing conception of

——————

3This contradiction arises, for example, under 28 U. S. C. §1292(b), one

of the statutes that the majority cites as prohibiting mandatory general

stays. See ante, at 7, n. 6 (citing Act of Sept. 2, 1958, Pub. L. 85–919, 72

Stat. 1770 (codified at §1292(b))). Section 1292(b) authorizes permissive

interlocutory appeals from a wide range of orders involving “controlling

question[s] of law”—including rulings on arbitrability. Arbitrability ap-

peals under §1292(b) were commonplace when Congress enacted 9

U. S. C. §16 in 1988. See, e.g., Danford v. Schwabacher, 488 F. 2d 454,

457 (CA9 1973) (“Since 1958 interlocutory arbitration orders have been

reviewable in accordance with the procedures prescribed by 28 U. S. C.

§1292(b)”). And in a §1292(b) arbitrability appeal, the majority’s reading

of §1292(b) would prohibit a mandatory general stay, while the majority’s

view of Griggs would require one.

Cite as: 599 U. S. ____ (2023) 11

JACKSON, J., dissenting

Griggs.

IV

To justify its new mandatory-general-stay rule, the ma-

jority ultimately rests on its assessment of what is “sensi-

ble.” Ante, at 5–6. But even the majority’s policy concerns

do not support its rule.

The dispute here turns on a subset of cases—those in

which a stay is not warranted under the usual discretionary

standard. See Nken, 556 U. S., at 434. All agree that an

interlocutory appeal should trigger a stay if that standard

is met. But the majority goes further and requires a stay in

all cases. Indeed, the majority mandates a stay even if none

of the traditional stay prerequisites are present: likelihood

of success on the merits, irreparable harm, favorable bal-

ance of equities, and alignment with the public interest.

See ibid.

The majority offers no good reason for that result. The

majority says that an automatic stay protects the party

seeking arbitration and conserves resources in case the dis-

pute “ultimately head[s] to arbitration” after appeal. Ante,

at 6. But the concern fades if that scenario is unrealistic—

i.e., if the party seeking arbitration is unlikely to succeed

on appeal.

The majority’s concern is even weaker when a stay would

harm the opposing party and the public interest much more

than it would protect the party seeking arbitration. Take,

for example, a case in which crucial evidence would be lost

if discovery is delayed. Say a witness is on her deathbed.

Under the majority’s rule, if an interlocutory arbitrability

appeal under §16(a) is pending, discovery must be stayed

and the evidence must be lost. That is apparently so even

if the parties agree they wish to proceed with discovery.

The majority’s rule also prevents courts from crafting

case-specific solutions to balance all the interests at stake.

Under the traditional discretionary-stay rule, for instance,

12 COINBASE, INC. v. BIELSKI

JACKSON, J., dissenting

a judge could allow the parties to conduct only the forms of

discovery that would also be permitted in arbitration. That

would save time and leave nobody worse off even if, as the

majority fears, the dispute ultimately heads to arbitration.

But this kind of equitable resolution, which the court and

the parties might consider “sensible,” ante, at 6, is forbidden

under the majority’s mandatory-general-stay rule.

In addition, for each of the majority’s concerns favoring a

mandatory stay, there are countervailing considerations.

The majority professes interest in “efficiency.” Ibid. But

forcing district court proceedings to a halt—for months or

years while the appeal runs its course—is itself inefficient.

The majority also fears losing other “asserted benefits of ar-

bitration” without a stay. Ibid. But with a stay, the party

opposing arbitration loses the benefits of immediate litiga-

tion. A plaintiff’s request for injunctive protection against

imminent harm, for example, goes unanswered under the

majority’s rule. Similarly, while the majority laments set-

tlement pressure on parties seeking arbitration, ibid., the

rule it announces imposes settlement pressure in the oppo-

site direction. With justice delayed while the case is on

hold, parties “could be forced to settle,” ibid., because they

do not wish—or cannot afford—to leave their claims in

limbo. Incongruously, the majority inflicts these burdens

on the party that won the arbitrability issue before the dis-

trict court (the party opposing arbitration).

In categorically resolving these conflicts in favor of the

pro-arbitration party, the majority’s analysis comes down

to this: Because the pro-arbitration party gets an interlocu-

tory appeal, it should also get an automatic stay. Ibid.; see

L.Numeroff, If You Give a Mouse a Cookie (1985). But Con-

gress was entitled to give one without the other. And the

right to interlocutory appeal is valuable on its own. It is, as

the majority explains, “a rare statutory exception to the

usual rule that parties may not appeal before final judg-

ment.” Ante, at 3. Even without a stay, if the interlocutory

Cite as: 599 U. S. ____ (2023) 13

JACKSON, J., dissenting

appeal succeeds, the pro-arbitration party gets its wish and

the dispute goes to arbitration.

Perhaps for those reasons, real-life parties do not agree

with the majority that an interlocutory arbitrability appeal

is pointless without an automatic stay. No stay was issued

in this case, for example, yet Coinbase still pursued its in-

terlocutory appeal. Nor did other parties stop bringing in-

terlocutory arbitrability appeals in the Circuits that had in-

terpreted §16 to impose no automatic stay.4

Yet this Court steps in to give the pro-arbitration party

the additional right to an automatic stay that Congress

withheld. Now, any defendant that devises a non-frivolous

argument for arbitration can not only appeal, but also press

pause on the case—leaving plaintiffs to suffer harm, lose

evidence, and bleed dry their patience and funding in the

meantime. To confer that power on a class of litigants,

based on blanket judgments resolving competing policy con-

cerns, is Congress’s domain, not ours. And where Congress

is silent, the job of managing particular litigation, in light

of the concrete circumstances presented, belongs to the

judge closest to a case.

——————

4For over a decade, the Second, Fifth, and Ninth Circuits have all held

that a §16(a) appeal triggers no mandatory general stay. Motorola Credit

Corp. v. Uzan, 388 F. 3d 39, 53–54 (CA2 2004); Britton v. Co-op Banking

Group, 916 F. 2d 1405, 1412 (CA9 1990); Weingarten Realty Investors v.

Miller, 661 F. 3d 904, 907–910 (CA5 2011). And those Circuits face no

shortage of interlocutory §16(a) appeals. See, e.g., Palacios v. Alifine

Dining, Inc., 2023 WL 2469765 (CA2, Mar. 13, 2023); Laurel v. Cintas

Corp., 2023 WL 2363686 (CA9, Mar. 6, 2023); NATS, Inc. v. Radiation

Shield Technologies, Inc., 2023 WL 2416160 (CA2, Mar. 9, 2023); Hill v.

Xerox Bus. Servs., LLC, 59 F. 4th 457 (CA9 2023); Johnson v. Walmart

Inc., 57 F. 4th 677 (CA9 2023); Noble Capital Fund Mgmt., LLC v. US

Capital Global Inv. Mgmt., LLC, 31 F. 4th 333 (CA5 2022); Forby v. One

Technologies, LP, 13 F. 4th 460 (CA5 2021); Soliman v. Subway Franchi-

see Adv. Fund Trust, Ltd., 999 F. 3d 828 (CA2 2021); Polyflow, LLC v.

Specialty RTP, LLC, 993 F. 3d 295 (CA5 2021).

14 COINBASE, INC. v. BIELSKI

JACKSON, J., dissenting

V

The Court today ventures down an uncharted path—and

that way lies madness. Never before had this Court man-

dated a general stay simply because an interlocutory appeal

poses the question “whether the litigation may go forward

in the district court.” Ante, at 3 (internal quotation marks

omitted). And a wide array of appeals seemingly fits that

bill.

Indeed, any appeal over the proper forum for a dispute

would arguably raise the same question. After all, “an ar-

bitration agreement is ‘a specialized kind of forum-selection

clause.’” Viking River Cruises, Inc. v. Moriana, 596 U. S.

___, ___ (2022) (slip op., at 11) (quoting Scherk v. Alberto-

Culver Co., 417 U. S. 506, 519 (1974)). If arbitration ap-

peals require stays of all pre-trial and trial proceedings,

why not all appeals about forum-selection agreements?

And why not appeals over non-contractual disputes over the

proper adjudicator, like venue, personal jurisdiction, forum

non conveniens, federal-court jurisdiction, and abstention?

For that matter, “virtually every right that could be en-

forced appropriately by pretrial dismissal might loosely be

described as conferring a ‘right not to stand trial.’” Digital

Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 873

(1994). “Such motions can be made in virtually every case.”

Ibid. Does every interlocutory appeal concerning a case-dis-

positive issue now trigger a mandatory general stay of trial

court proceedings?

Taken that broadly, the mandatory-general-stay rule the

Court adopts today would upend federal litigation as we

know it. Aware that any interlocutory appeal on a disposi-

tive issue grinds the plaintiff’s case to a halt, defendants

would presumably pursue that tactic at every opportunity.

This would occur, for example, in interlocutory appeals

available as of right under 28 U. S. C. §1292(a)(1) from or-

ders granting preliminary injunctions. Any defense lawyer

worth her salt would invoke the right to take that appeal

Cite as: 599 U. S. ____ (2023) 15

JACKSON, J., dissenting

and throw up some objection—to venue, jurisdiction, or a

dispositive element of the merits—to trigger a mandatory

stay. For plaintiffs, then, every preliminary-injunction mo-

tion becomes a trap: Even if the motion is granted, the de-

fendant can take that opportunity to stop the trial court

proceedings in their tracks.

Facing these destabilizing consequences, the majority

stops short of following its own reasoning to that ominous

conclusion. Today’s holding reaches only arbitration ap-

peals under §16(a). Ante, at 1, 7. And it might well be that

the concerns motivating today’s mandatory-general-stay

rule do not extend beyond arbitration. So the majority will

not commit, for example, to concluding that appeals over

non-arbitration forum-selection clauses warrant the same

mandatory stay. Ante, at 9.

I agree with that hesitation—even one step further down

this path is much too far. The mandatory-general-stay rule

that the Court manufactures is unmoored from Congress’s

commands and this Court’s precedent. And the windfall

that the Court gives to defendants seeking arbitration, pref-

erencing their interests over all others, is entirely unwar-

ranted. The Court now mandates that result no matter how

unjust that outcome is, according to traditional equitable

standards, in a given case. This endeavor is unfounded, un-

wise, and—most fundamentally—not our role.