Amicus Curiae Brief — Coinbase, Inc., Petitioner v. Abraham Bielski

No. 22-105

IN THE

Supreme Court of the United States

___________

COINBASE, INC.,

v.

ABRAHAM BIELSKI,

___________

COINBASE, INC.,

v.

Petitioner,

Respondent.

Petitioner,

DAVID SUSKI, et al.,

Respondents.

___________

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

SMITA GHOSH

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

February 28, 2023

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

1

ARGUMENT .........................................................

5

I. Despite Coinbase’s Suggestions to the

Contrary, District Courts Clearly Retain

Jurisdiction When Arbitrability Appeals

Are Filed ........................................................

5

A. Section 16(a) Is Not a Jurisdictional

Provision...................................................

5

B. Griggs Is Not a Jurisdictional Rule ........

8

II. Section 16(a) Does Not Deprive Courts of

the Discretion to Determine Whether a

Stay Is Appropriate ......................................

11

CONCLUSION .....................................................

17

(i)

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Alice L. v. Dusek,

492 F.3d 563 (5th Cir. 2007) ......................... 13, 17

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) .......................................

6

Bielski v. Coinbase, Inc.,

No. 21-cv-07478 (N.D. Cal. Jan. 13, 2022) ...

2

Boechler, P.C. v. Comm’r of Internal Revenue,

142 S. Ct. 1493 (2022) ...................................

6

Califano v. Yamasaki,

442 U.S. 682 (1979) .......................................

11

Clinton v. Jones,

520 U.S. 681 (1997) .......................................

17

Dodd v. United States,

545 U.S. 353 (2005) .......................................

15

E.E.O.C. v. Waffle House, Inc.,

534 U.S. 279 (2002) .......................................

4

Fort Bend Cnty., Texas v. Davis,

139 S. Ct. 1843 (2019) ...................................

2, 5

Gonzalez v. Thaler,

565 U.S. 134 (2012) .......................................

6

Graham v. Gray,

827 F.2d 679 (10th Cir. 1987) .......................

13

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Griggs v. Provident Consumer Disc. Co.,

459 U.S. 56 (1982) ......................... 2, 3, 8, 9, 16, 17

Hamer v. Neighborhood Hous. Servs. of Chi.,

138 S. Ct. 13 (2017) ............................. 2, 3, 6-8, 10

Henderson v. Shinseki,

562 U.S. 428 (2011) .......................................

6

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) ...................................

15

In re Flint Water Cases,

960 F.3d 820 (6th Cir. 2020) .........................

13

In re World Trade Ctr. Disaster Site Litig.,

503 F.3d 167 (2d Cir. 2007)...........................

14

Johnson v. 3M Co.,

55 F.4th 1304 (11th Cir. 2022) .....................

13

Kennedy v. City of Cleveland,

797 F.2d 297 (6th Cir. 1986) .........................

14

Kontrick v. Ryan,

540 U.S. 443 (2004) .......................................

5

Landis v. North Am. Co.,

299 U.S. 248 (1936) .......................................

16

Lugo v. Alvarado,

819 F.2d 5 (1st Cir. 1987) .............................

13

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

Magwood v. Patterson,

561 U.S. 320 (2010) ....................................... 4, 15

Marrese v. Am. Acad. of Orthopaedic Surgeons,

470 U.S. 373 (1985) .......................................

9

Martin v. Malhoyt,

830 F.2d 237 (D.C. Cir. 1987) .......................

14

Matter of Jones,

768 F.2d 923 (7th Cir. 1985) ....................... 3, 9, 10

McSurely v. McClellan,

697 F.2d 309 (D.C. Cir. 1982) ....................... 13, 14

Miller v. French,

530 U.S. 327 (2000) .......................................

11

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) .....................................

4

Newton v. Consol. Gas Co. of New York,

258 U.S. 165 (1922) .......................................

9

Nken v. Holder,

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

11

Nutraceutical Corp. v. Lambert,

139 S. Ct. 710 (2019) .....................................

7

Porter v. Warner Holding Co.,

328 U.S. 395 (1946) .......................................

17

v

TABLE OF AUTHORITIES – cont’d

Page(s)

Prima Paint Corp. v. Flood & Conklin Mfg.

Co.,

388 U.S. 395 (1967) ....................................... 4, 15

Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154 (2010) .......................................

8

Rent-A-Ctr., W., Inc. v. Jackson,

561 U.S. 63 (2010) .........................................

15

Rodriguez v. Cnty. of Los Angeles,

891 F.3d 776 (9th Cir. 2018) .........................

10

Sebelius v. Auburn Regional Medical Center,

568 U.S. 145 (2013) .......................................

2, 6

Taylor v. Sterrett,

640 F.2d 663 (5th Cir. 1981) .........................

13

United States v. Brooks,

145 F.3d 446 (1st Cir. 1998) ..........................

11

United States v. Carpenter,

941 F.3d 1 (1st Cir. 2019) .............................. 3, 10

United States v. Dunbar,

611 F.2d 985 (5th Cir. 1980) .........................

12

United States v. Madrid,

633 F.3d 1222 (10th Cir. 2011) .....................

10

Venen v. Sweet,

758 F.2d 117 (3d Cir. 1985) ...........................

10

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Volt Info. Scis., Inc. v. B. of Trs. of Leland

Stanford Junior Univ.,

489 U.S. 468 (1989) ....................................... 4, 16

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) .......................................

7

Statutes, Constitutional Provisions, and Legislative

Materials

Electronic Funds Transfer Act, 15 U.S.C. 398

U.S. §§ 1693 et seq. ........................................

1

FRAP(4)(a) ........................................................

7

H.R. Rep. No. 68-96 (1924) ..............................

4

9 U.S.C. § 2 .......................................................

15

9 U.S.C § 16(a)..................................................

2

U.S. const. art. III, § 1......................................

5

Other Authorities

Allen Ides, The Authority of A Federal District

Court to Proceed After A Notice of Appeal Has

Been Filed, 143 F.R.D. 307 (1992) ................

9

20 James Wm. Moore et al., Moore’s Federal Practice (3d ed. 2019) ......................................... 3, 5, 10

16 Charles A. Wright et al., Federal Practice & Procedure (5th ed. Apr. 2022 Update) ................ 9, 10

1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in ensuring meaningful access to the courts

and thus has an interest in ensuring that statutory

provisions are treated as jurisdictional only when Congress clearly requires that result.

INTRODUCTION

AND SUMMARY OF ARGUMENT

Coinbase is a cryptocurrency exchange platform

that facilitates online transactions of cryptocurrency

and profits from fees assessed on those transactions.

Respondents are Coinbase accountholders who seek to

hold the company accountable for false advertising,

unfair competition, and failing to investigate electronic fraud under the Electronic Funds Transfer Act,

15 U.S.C. §§ 1693 et seq. (“EFTA”), and therefore

brought suit against Coinbase.

Rather than respond to Respondents’ claims on

the merits, Coinbase moved to compel arbitration

based on an arbitration clause in the company’s User

Agreement that, Coinbase alleges, demonstrates that

Respondents agreed to arbitrate their disputes. When

the district courts denied the motions to compel

1 Under Rule 37.6 of the Rules of this Court, amicus states that

no counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than amicus or its counsel made a monetary contribution to its

preparation or submission.

2

arbitration, Coinbase appealed. See Bielski v. Coinbase, Inc., No. 21-cv-07478 (N.D. Cal. Jan. 13, 2022),

Dkt. No. 43; J.A. 716. Soon after, Coinbase filed motions in the court below to stay the district court proceedings pending appeal in both cases, and the court

below denied both motions. See J.A. 178; id. at 728.

Coinbase now argues that the court below was

wrong to deny the motions because the district courts

lacked authority to proceed with litigation while the

appeals were pending. According to Coinbase, Section

16(a) of the Federal Arbitration Act (FAA), which does

nothing more than provide that an interlocutory appeal “may be taken from” certain orders refusing arbitration, 9 U.S.C. § 16(a), strips a district court of authority over a case after an appeal has been noticed

pursuant to that provision. This is wrong.

As an initial matter, Section 16(a) itself is clearly

not jurisdictional. In accordance with its efforts to

“ward off profligate use of the term ‘jurisdictional,’”

Sebelius v. Auburn Regional Medical Center, 568 U.S.

145, 153 (2013), this Court requires a clear statement

before it regards a statutory provision as jurisdictional, Hamer v. Neighborhood Hous. Servs. of Chi.,

138 S. Ct. 13, 21 n.9 (2017); see also Fort Bend Cnty.,

Texas v. Davis, 139 S. Ct. 1843, 1849 (2019) (“[When

Congress does not rank a prescription as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”). There is no such clear statement here.

Nor does this Court’s decision in Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) (per curiam), which held that an appeal “divests the district

court of its control over those aspects of the case involved in the appeal,” id. at 58, set out a jurisdictional

rule. Although Griggs referred to the filing of a notice

of appeal as an event of “jurisdictional significance,”

3

id., this Court has since made clear that “[o]nly Congress may determine a lower federal court’s subjectmatter jurisdiction,” Hamer, 138 S. Ct. at 17. Thus, as

courts of appeals have repeatedly recognized, Griggs is

not a jurisdictional rule, but a prudential rule of judicial economy. See, e.g., United States v. Carpenter, 941

F.3d 1, 6 (1st Cir. 2019); Matter of Jones, 768 F.2d 923,

931 (7th Cir. 1985) (Posner, J., concurring).

The “judge-made rule,” id., that Griggs articulated

is “designed to promote judicial economy and avoid the

confusion and inefficiency that might flow from putting the same issue before two courts at the same

time,” 20 James Wm. Moore et al., Moore’s Federal

Practice ¶ 303.32[1] (3d ed. 2019). Under this rule, district courts cannot address “aspects of the case [that]

are involved in the appeal” while the appeal is pending, but may move forward with other components of

the case. Id.

Coinbase in effect asks this Court to jettison this

rule, arguing that district courts can under no circumstances continue to address any aspect of a case after

an appeal of a motion to compel arbitration has been

noticed. According to Coinbase, Congress established

a mandatory, automatic stay of district court proceedings when it enacted Section 16(a). There is simply no

basis for that argument in the text, history, or purpose

of Section 16(a).

To start, there is no evidence supporting Coinbase’s

position in the text of Section 16(a), which does nothing more than authorize the taking of interlocutory appeals from certain orders. Perhaps recognizing the absence of textual support for its position, Coinbase focuses on Griggs and other cases that, it argues, support the inference that Congress intended to impose a

mandatory, automatic stay rule. But none of those

4

cases provide reason for this Court to ignore the plain

language of Section 16(a).

In support of its request for an automatic stay rule,

Coinbase also points to the “purpose” of the FAA generally and Section 16(a) in particular. See Pet’r Br. 3134. But even if the Court could “replace the [FAA’s]

actual text with speculation as to Congress’ intent,”

Magwood v. Patterson, 561 U.S. 320, 334 (2010), that

too is contrary to Coinbase’s argument. As this Court

has explained, the FAA was passed to “require[] courts

to enforce private arbitration agreements,” New Prime

Inc. v. Oliveira, 139 S. Ct. 532, 536 (2019); see Prima

Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,

423 (1967) (“The avowed purpose of the Act was to

place arbitration agreements ‘upon the same footing as

other contracts.’” (quoting H.R. Rep. No. 68-96, at 1-2

(1924))); E.E.O.C. v. Waffle House, Inc., 534 U.S. 279,

294 (2002) (FAA is “at bottom a policy guaranteeing

the enforcement of private contractual arrangements”), and it “does not require parties to arbitrate

when they have not agreed to do so,” Volt Info. Scis.,

Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489

U.S. 468, 478 (1989). There is no indication that Congress intended to provide parties invoking the FAA

with a stay of proceedings while appellate courts review decisions concerning the existence of an agreement to arbitrate. Moreover, an automatic stay rule of

the sort Coinbase now requests is not necessary to effectuate the goal of Section 16(a), which, as Coinbase

acknowledges, was simply to authorize interlocutory

appeals from certain specified orders.

In sum, there is simply no support for Coinbase’s

argument that Congress established a mandatory automatic stay rule that displaces courts’ authority to determine whether continued district court proceedings

would put “the same issue before two courts at the

5

same time,” 20 Moore, supra, ¶ 303.32[1], or whether

a stay is otherwise appropriate. This Court should reject Coinbase’s request that it establish one now.

ARGUMENT

I.

Despite Coinbase’s Suggestions to the

Contrary, District Courts Clearly Retain

Jurisdiction When Arbitrability Appeals

Are Filed.

Coinbase repeatedly argues that the filing of an

arbitrability appeal “oust[s] a district court’s

jurisdiction to proceed with litigation pending appeal,”

Pet’r Br. i; id. at 2 (“Allowing district court proceedings

to march on . . . improperly permits the district court

to retain jurisdiction over the core issues on appeal.”);

id. at 26 (noting that that the text of Section 16(a)

“divests the district court of authority to press ahead

with the merits during the appeal”); id. at 3, 19. To

the extent that Coinbase is suggesting that district

courts lose subject-matter jurisdiction when an

arbitrability appeal is filed, it is wrong.

A. Section 16(a) Is Not a Jurisdictional Provision.

As this Court has explained, the term “jurisdictional” is “generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom

the court may exercise adjudicatory authority (personal jurisdiction),” Fort Bend County, 139 S. Ct. at

1848, and “only Congress may determine a lower federal court’s subject-matter jurisdiction,” Kontrick v.

Ryan, 540 U.S. 443, 452 (2004) (citing U.S. const. art.

III, § 1).

Because the consequences of attaching the jurisdictional label are significant, Henderson v. Shinseki, 562

6

U.S. 428, 434 (2011) (“[b]randing a rule as going to a

court’s subject-matter jurisdiction alters the normal

operation of our adversarial system”); Hamer, 138 S.

Ct. at 17 (lack of jurisdiction “necessitate[es] dismissal—a ‘drastic’ result” (quoting Henderson, 562 U.S. at

435)), and courts “have an independent obligation to

determine whether subject-matter jurisdiction exists,

even in the absence of a challenge from any party,” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006), this

Court has repeatedly admonished that rules should

not be labeled jurisdictional unless Congress “clearly

states” an intention to imbue a particular rule with

those severe consequences, id. at 515; see Auburn Regional Med. Ctr., 568 U.S. at 153 (noting the need to

“ward off profligate use of the term ‘jurisdictional’”).

This Court’s approach to determining whether

Congress has “clearly state[d]” an intent to make a

rule jurisdictional is not complicated. “To satisfy the

clear-statement rule, the jurisdictional condition must

be just that: clear.” Boechler, P.C. v. Comm’r of Internal Revenue, 142 S. Ct. 1493, 1499 (2022). In other

words, this Court has made clear that “[a] rule is jurisdictional ‘[i]f the Legislature clearly states that a

threshold limitation on a statute’s scope shall count as

jurisdictional.’” Gonzalez v. Thaler, 565 U.S. 134, 141

(2012) (quoting Arbaugh, 546 U.S. at 515).

Even when a statutory provision “govern[s] the

transfer of adjudicatory authority from one Article III

court to another,” Hamer, 138 S. Ct. at 20, rather than

“empower[ing] federal courts to adjudicate” certain actions, Arbaugh, 546 U.S. at 503, this Court has cautioned against “mischaracterizing claim-processing

rules . . . as jurisdictional limitations,” Hamer, 138 S.

Ct. at 17.

In Hamer, this Court evaluated a Federal Rule of

Appellate Procedure providing that “[n]o extension [of

7

time for filing a notice of appeal] may exceed 30 days

after the prescribed time.”

Id. at 19 (citing

FRAP(4)(a)(5)(C)). Although there was no statute specifically limiting extensions of the appeals deadline,

the respondents in Hamer argued that the federal rule

had a “statutory basis” and was therefore jurisdictional. Id. at 20. The Court rejected this argument. It

held that the federal rule was a mandatory claim-processing rule, not a “jurisdictional” deadline, because “a

provision governing the time to appeal in a civil action

qualifies as jurisdictional only if Congress sets the

time.” Id. at 17 (emphasis added, citations and internal quotation marks omitted).

Like the respondents in Hamer, Coinbase seems to

argue that Section 16 is “jurisdictional” by reference to

a procedural rule—here, the judge-made rule in

Griggs, see Pet’r Br. 25-36, rather than a federal rule

of procedure—that does not appear in any statute.

And as Hamer makes clear, a procedural rule cannot

make a provision “jurisdictional” when it is “absent

from the U.S. Code.” Hamer, 138 S. Ct. at 21; see

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714

(2019) (“Because Rule 23(f)’s time limitation [for permitting an appeal from an order granting or denying

class-action certification] is found in a procedural rule,

not a statute, it is properly classified as a nonjurisdictional claim-processing rule.”).

Significantly, Section 16(a), which provides that

“[a]n appeal may be taken from” various specified orders, provides no indication—let alone a clear one—

that Congress intended the authorization of these appeals to be jurisdictional. It “does not speak in jurisdictional terms or refer in any way to the jurisdiction

of [district] courts.” Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 394 (1982). Indeed, its text “says

nothing about whether [the district court retains]

8

subject-matter jurisdiction.” Reed Elsevier, Inc. v.

Muchnick, 559 U.S. 154, 164 (2010). It simply authorizes the taking of an interlocutory appeal without suggesting, at all, that there is jurisdictional significance

to noticing an appeal.

B. Griggs Is Not a Jurisdictional Rule.

Although Griggs referred to the “[t]he filing of a

notice of appeal” as an “event of jurisdictional

significance,” 459 U.S. at 58, this Court has since made

clear that “[o]nly Congress may determine a lower

federal court’s subject-matter jurisdiction,” Hamer,

138 S. Ct. at 17; see id. at 21 (noting that the Court has

not always been “meticulous” in its use of the term

“jurisdictional”). Griggs is thus a prudential rule and

cannot support an argument that the filing of an

arbitrability appeal divests district courts of

jurisdiction over the case.

In Griggs, the respondent filed a motion to amend

a district court’s final decision seven days after the

district court entered final judgment. Griggs, 459 U.S.

at 57. While the motion to amend was pending, the

respondent filed a notice of appeal of the final

judgment. Id. The court of appeals accepted the

appeal, even though, as it acknowledged, the appeal

was technically premature because of the pending

motion to amend. Id. at 57-58. This Court reversed,

concluding that the court of appeals did not have

jurisdiction over the premature appeal under a newly

enacted rule of civil procedure. Id. at 61. In so doing,

the Court observed that “[t]he filing of a notice of

appeal is an event of jurisdictional significance—it

confers jurisdiction on the court of appeals and divests

9

the district court of its control over those aspects of the

case involved in the appeal.” Id. at 58.

Although the Court used “jurisdictional” language,

Griggs itself made clear that district courts did not lose

subject-matter jurisdiction over the entirety of the

case, but rather retained authority to address matters

not at issue in the appeal. Id. at 59 (describing cases

in which the district court retained jurisdiction when

there was “little danger a district court and a court of

appeals would be simultaneously analyzing the same

judgment”); Marrese v. Am. Acad. of Orthopaedic

Surgeons, 470 U.S. 373, 379 (1985) (noting that the

“proposition [in Griggs] . . . does not imply that an

[interlocutory appeal] transfers jurisdiction over the

entire case to the court of appeals” (emphasis added)).

Indeed, because “[t]he purpose of the rule is to keep

the district court and the court of appeals out of each

other’s hair,” Jones, 768 F.2d at 931, the rule only

“suspends the power of the district court to modify the

order subject to appeal, but does not oust district-court

jurisdiction to continue with proceedings that do not

threaten either the appeal’s orderly disposition or its

raison d’etre,” 16A Charles A. Wright, et al., Federal

Practice & Procedure § 3949.1 (5th ed. Apr. 2022

Update). In other words, under Griggs, while the

district court “may not finally adjudicate substantial

rights directly involved in the appeal,” Newton v.

Consol. Gas Co. of New York, 258 U.S. 165, 177 (1922),

it is “is free to continue to adjudicate matters separate

from or collateral to the appeal,” Allan Ides, The

Authority of A Federal District Court to Proceed After

A Notice of Appeal Has Been Filed, 143 F.R.D. 307,

308-09 (1992).

Thus, as prominent treatises have recognized, the

divestiture rule this Court articulated in Griggs “is not

derived from the jurisdictional statutes or from the

10

rules,” but rather “is a judge-made doctrine, designed

to promote judicial economy and avoid the confusion

and inefficiency that might flow from putting the same

issue before two courts at the same time.” 20 Moore,

supra, ¶ 303.32[1]; Wright et al., supra, § 3949.1

(“[T]he rule . . . is a judge-made doctrine designed to

implement a commonsensical division of labor between

the district court and the court of appeals.”).

Indeed, this is how courts of appeals have

repeatedly described Griggs’s divestiture rule. See,

e.g., Carpenter, 941 F.3d at 6 (“The divestiture rule is

. . . not jurisdictional. Rather, the divestiture rule is

rooted in concerns of judicial economy, crafted by

courts to avoid the confusion and inefficiency that

would inevitably result if two courts at the same time

handled the same issues in the same case.” (quotations

omitted)); Rodriguez v. Cnty. of Los Angeles, 891 F.3d

776, 790 (9th Cir. 2018) (observing that the divestiture

rule is therefore more akin to “‘mandatory claimprocessing rules’ that may be applied in a ‘less stern’

manner than true jurisdictional rules” (quoting

Hamer, 138 S. Ct. at 17)). These courts make clear

that the divestiture principle is a “judge-made rule”

that aims to “prevent[] the confusion and inefficiency

which would of necessity result were two courts to be

considering the same issue or issues simultaneously.”

Venen v. Sweet, 758 F.2d 117, 121 (3d Cir. 1985); see

United States v. Madrid, 633 F.3d 1222, 1226 (10th

Cir. 2011) (“This rule ‘is a judge-made doctrine’”

(quoting 20 Moore, supra, § 303.32)); Jones, 768 F.2d

at 931 (“This is a judge-made rule, and naturally there

are exceptions to it.”). Thus, the administration of the

divestiture rule is “sensitive” and “requires a delicate

touch” that is attuned to the rule’s purpose—to

11

prevent the “risk of an intramural collision.” United

States v. Brooks, 145 F.3d 446, 456 (1st Cir. 1998).

***

In short, there is no basis for concluding that

districts courts are divested of subject-matter

jurisdiction by the filing of an arbitrability appeal.

Nor is there any basis for concluding that Congress, in

passing Section 16(a), stripped courts of the discretion

to determine whether a stay is appropriate, as the next

Section discusses.

II. Section 16(a) Does Not Deprive Courts

of the Discretion to Determine

Whether a Stay Is Appropriate.

Under Griggs, courts must determine whether the

issues the district court is continuing to address are at

issue in the appeal. If they are not, the district court

can continue to address those issues, unless it determines that a stay is warranted under the traditional

four-part stay test. Coinbase asks this Court to take

the discretion to make those determinations away

from courts and to conclude that Section 16(a) requires

an automatic and mandatory stay whenever an arbitrability appeal is filed. See, e.g., Pet’r Br. 17-19.

There is simply no basis for that request in the text,

history, or purpose of the FAA.

A. This Court has repeatedly refused to “displace

courts’ traditional equitable authority” absent the

“clearest command” from Congress. Miller v. French,

530 U.S. 327, 340-41 (2000) (quoting Califano v. Yamasaki, 442 U.S. 682, 705 (1979)); cf. Nken v. Holder,

556 U.S. 418, 433 (2009) (“[W]e are loath to conclude

that Congress would, without clearly expressing such

a purpose, deprive the Court . . . of its customary power

to stay orders under review.” (internal quotation

12

marks omitted)). It thus bears noting that Coinbase

makes virtually no argument about the text of Section

16(a). How could it? By its terms, Section 16(a) simply

authorizes interlocutory appeals.

B. Perhaps recognizing that the text itself provides

no support for its argument, Coinbase argues instead

that this Court should infer a congressional intent to

strip courts of the discretion to determine whether a

stay is appropriate because of case law that existed at

the time Section 16(a) was passed. “In enacting this

text,” Coinbase argues, “Congress legislated against

the backdrop of the divestiture rule, which provides

that district courts are divested of authority to proceed

with matters implicated by the appeal.” Pet’r Br. 20.

But, as previously discussed, Griggs is not a jurisdictional rule—it is a rule of judicial economy designed

to avoid continued district court litigation over “those

aspects of the case involved in the appeal.” Nothing

about Griggs suggests that Congress, in passing Section 16(a), intended to take that discretion away from

courts and impose instead a mandatory and automatic

stay. If anything, the existence of the Griggs backdrop

suggests that Congress would have understood the

need to be clear had it intended to disrupt that status

quo.

Coinbase also points to cases applying Griggs’s divestiture rule in the immunity context that, it argues,

support its reading of Section 16(a). According to Coinbase, “[t]he Congress that amended the FAA to allow

interlocutory appeals in 1988 was legislating against

the backdrop of appellate precedent making clear that

nonfrivolous interlocutory appeals from denials of immunity deprived district courts of authority to proceed.” Pet’r Br. 40 (referencing United States v. Dunbar, 611 F.2d 985, 988 (5th Cir. 1980) (en banc)).

13

Even accepting Coinbase’s analogy between the

rights of parties invoking the FAA and those protected

by this Court’s immunity cases, these cases do not support Coinbase’s argument. In 1988, as today, courts

regularly acknowledged that “the district court may

still proceed with matters not involved in the appeal”

pending the appeal of an immunity defense, and that

“[h]ow broadly a court defines the aspects of the case

on appeal depends on the nature of the appeal.” Alice

L. v. Dusek, 492 F.3d 563, 564-65 (5th Cir. 2007) (quoting Taylor v. Sterrett, 640 F.2d 663, 667-68 (5th Cir.

1981)); Johnson v. 3M Co., 55 F.4th 1304, 1309 (11th

Cir. 2022) (pending appeal of an immunity defense, the

district court retained jurisdiction to accept amended

complaint, because the “notice of appeal divested the

district court of jurisdiction over only one claim in a

single count” of the original complaint). For example,

around the time of the FAA’s amendment, district

courts regularly retained discretion to permit discovery on issues not related to the appealed immunity order. See, e.g., Graham v. Gray, 827 F.2d 679, 682 (10th

Cir. 1987) (stay was unnecessary when “the scope of

discovery permitted by the district court appears to be

neither oppressive nor unnecessary, and equally appropriate if sought from a nonparty”); Lugo v. Alvarado, 819 F.2d 5, 6-7 (1st Cir. 1987) (denying stay

when discovery proceedings were “not directed solely

at damage issues related to the qualified immunity defense”); see generally In re Flint Water Cases, 960 F.3d

820, 828 n.2 (6th Cir. 2020) (citing cases).

Similarly, district courts often denied motions to

stay during appeals of immunity-related orders when

doing so would “seriously curtail a civil rights plaintiff’s opportunity to present an adequate opposition . . .

[or] gather and present evidence.” Lugo, 819 F.2d at 5

(quoting district court order); see also McSurely v.

14

McClellan, 697 F.2d 309, 317 (D.C. Cir. 1982) (observing that a stay was inappropriate when “[t]he interests

of the public and of the McSurelys in avoiding further

delay are substantial”); see generally In re World Trade

Ctr. Disaster Site Litig., 503 F.3d 167, 170-71 (2d Cir.

2007) (denying stay due to the “public interest in . . .

hastening the trial that might result in compensation

for at least some Plaintiffs during their lifetimes, even

though that course will impose upon the Defendants

the burdens of pretrial discovery”). Indeed, as courts

had observed prior to the passage of Section 16(a), district courts can use their authority pending appeal to

minimize “the opportunity for abusive delay inherent

in the protections afforded by the doctrines of absolute

and qualified immunity” through “diligent administration of pretrial proceedings,” Kennedy v. City of Cleveland, 797 F.2d 297, 301 (6th Cir. 1986); see generally

Martin v. Malhoyt, 830 F.2d 237, 246 (D.C. Cir. 1987)

(describing district court’s discretion to “refuse[] to

postpone discovery, but stay[] trial pending appeal”),

and careful assessment of the “unique circumstances

of each case,” McSurely, 697 F.2d at 317.

Again, Coinbase offers no reason to think that

Congress intended, sub silentio, to disturb this settled

practice and to impose instead a mandatory and automatic rule that leaves courts without discretion to determine when some matters can still be litigated while

the appeal is pending.

C. Coinbase also argues that its proposed divestiture rule should be adopted because it comports with

the FAA’s “central purpose.” Pet’r Br. 31-34. Because

the statute’s purpose is to “facilitate streamlined proceedings” and avoid “costs and delay through litigation,” Coinbase argues, Section 16 must contain an unstated divestiture requirement. Id. at 32 (citations

omitted).

15

As an initial matter, this Court “cannot replace the

[FAA’s] actual text with speculation as to Congress’ intent,” Magwood, 561 U.S. at 334, and nothing in that

text supports the rule that Coinbase requests. The

court cannot “presume . . . that any result consistent

with [Coinbase’s] account of the statute’s overarching

goal must be the law.” Henson v. Santander Consumer

USA Inc., 137 S. Ct. 1718, 1725 (2017). It must “presume more modestly instead ‘that [the] legislature

says . . . what it means and means . . . what it says.’”

Id. (quoting Dodd v. United States, 545 U.S. 353, 357

(2005)).

Furthermore, nothing about the purpose of the

FAA in general or of Section 16(a) in particular requires that district courts be stripped of all authority

in the case when an arbitrability appeal is filed. As

this Court has recognized, the FAA was passed to

“place[] arbitration agreements on an equal footing

with other contracts and requires courts to enforce

them according to their terms.” Rent-A-Ctr., W., Inc.

v. Jackson, 561 U.S. 63, 67 (2010). Like any agreement, arbitration agreements are not “unassailable,”

id. at 71, nor “immunize[d] from judicial challenge,”

Prima Paint, 388 U.S. at 404 n.12.

Indeed, Section 2 of the FAA provides that written

arbitration agreements shall be enforceable “save

upon such grounds as exist at law or in equity for the

revocation of any contract.” 9 U.S.C. § 2. This “saving

clause” indicates that “the purpose of Congress in 1925

was to make arbitration agreements as enforceable as

other contracts, but not more so.” Prima Paint, 388

U.S. at 404 n.12; Rent-A-Ctr., 561 U.S. at 68 (“If a

party challenges the validity . . . the precise agreement

to arbitrate at issue, the federal court must consider

the challenge before ordering compliance with that

agreement.”).

16

By requesting an automatic stay rule, Coinbase effectively seeks to elevate arbitration agreements above

other contracts, so that parties invoking the FAA can

enjoy the benefits of arbitration before a court has even

determined that an agreement to arbitrate exists.

This undermines “Congress’ principal purpose of ensuring that private arbitration agreements are enforced according to their terms,” Volt, 489 U.S. at 478,

and creates a special rule for arbitration agreements

that finds no support in the FAA.

Furthermore, there is no reason to think that Coinbase’s automatic stay rule is necessary to achieve the

purposes of Section 16. Coinbase may well be right

that Section 16(a) was passed to resolve a circuit split

about whether “threshold arbitrability orders are immediately appealable,” Pet’r Br. 31; see also Bielski Br.

14-16, but Section 16(a) does exactly that by specifying

when interlocutory appeals may be taken, making the

mandatory and automatic stay rule that Coinbase requests wholly unnecessary. Indeed, given that cases

dating from the time of Section 16(a)’s enactment allowed for district courts to continue to adjudicate

“those aspects of the case [not] involved in the appeal,”

Griggs, 459 U.S. at 58, there is every reason to think

Congress would have been explicit had it intended to

disrupt that background rule. Yet there is nothing in

the text of the law that suggests that was its intent.

***

As this Court has long recognized, a district court

has significant “power . . . to control the disposition of

the cases on its docket with economy of time and effort

for itself, for counsel, and for litigants,” Landis v.

North Am. Co., 299 U.S. 248, 254 (1936) (Cardozo, J.),

and the “broad discretion to stay proceedings [is] an

incident to its power to control its own docket,”

17

Clinton v. Jones, 520 U.S. 681, 683 (1997). Similarly,

even when an interlocutory appeal is pending, district

courts retain the discretion to “proceed with matters

not involved in the appeal.” Alice L., 492 F.3d at 56465; Griggs, 459 U.S. at 58.

Coinbase argues that Section 16(a) silently disrupts this state of affairs, automatically divesting the

district court of authority to continue proceedings

while an appeal is pending. But the “comprehensiveness of [a district court’s] equitable jurisdiction is not

to be denied or limited in the absence of a clear and

valid legislative command.” Porter v. Warner Holding

Co., 328 U.S. 395, 398 (1946). And nothing in the

FAA’s text, history, or purpose provides that command.

CONCLUSION

For the foregoing reasons, the decision of the court

below should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

SMITA GHOSH

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

February 28, 2023

* Counsel of Record