United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2011 Decided January 13, 2012
No. 10-7167
BELIZE SOCIAL DEVELOPMENT LIMITED,
APPELLANT
v.
GOVERNMENT OF BELIZE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02170)
Louis B. Kimmelman argued the cause and filed the briefs
for appellant. Joseph S. Hall entered an appearance.
Juan C. Basombrio, pro hac vice, argued the cause for
appellee. With him on the brief was Jay C. Johnson.
Before: ROGERS, GARLAND and KAVANAUGH, Circuit
Judges.
Opinion for the Court by Circuit Judge ROGERS.
Dissenting opinion by Circuit Judge KAVANAUGH.
2
ROGERS, Circuit Judge: This case involves a petition to
confirm and enforce a foreign arbitration award against the
Government of Belize pursuant to section 207 of the Federal
Arbitration Act, 9 U.S.C. § 207. The plaintiff appeals an order
staying the proceeding pending the outcome of related litigation
in Belize. We conclude that the stay order as issued exceeded
the proper exercise of authority of the district court and remand
the case for further proceedings.
I.
The Federal Arbitration Act, 9 U.S.C. § 201–208 (2006)
(“FAA”), codifies the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, which addresses “the
recognition and enforcement of arbitral awards made in the
territory of a State other than the State where the recognition and
enforcement of such awards are sought.” Art. I, opened for
signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 (“New
York Convention”). Under the New York Convention, “[e]ach
Contracting State shall recognize arbitral awards as binding and
enforce them in accordance with the rules of procedure of the
territory where the award is relied upon.” Id. art. III. Section
207 of the FAA provides that the district court, when exercising
its original jurisdiction pursuant to section 203 of the FAA,
“shall confirm the award unless it finds one of the grounds for
refusal or deferral of recognition or enforcement of the award
specified in the said Convention.” 9 U.S.C. § 207. Article VI
of the Convention limits the grounds for deferral of a decision
on enforcement to those specified in Article V(1)(e):
enforcement proceedings may be adjourned only if “an
application for the setting aside or suspension of the award has
been made to a competent authority,” N.Y. Convention art. VI,
“of the country in which, or under the law of which, that award
was made,” id. art. V(1)(e).
3
Consistent with the “emphatic federal policy in favor of
arbitral dispute resolution” recognized by the Supreme Court as
“appl[ying] with special force in the field of international
commerce,” Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 631 (1985), the FAA affords the
district court little discretion in refusing or deferring
enforcement of foreign arbitral awards: the Convention is
“clear” that a court “may refuse to enforce the award only on
the grounds explicitly set forth in Article V of the Convention.”
TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935
(D.C. Cir. 2007) (quoting Yusuf Ahmed Alghanim & Sons,
W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997)); see
also Alghanim & Sons, 126 F.3d at 20. It is equally clear that a
court may adjourn enforcement proceedings only on the grounds
explicitly set forth in Article V(1)(e) of the Convention. See
N.Y. Convention art. VI.
The facts underlying the issuance of the challenged stay
order are as follows. On September 19, 2005, the Prime
Minister of Belize executed an “Accommodation Agreement”
with Belize Telemedia Limited (“Telemedia”)1 on behalf of the
Government of Belize. The Agreement called for Telemedia to
acquire certain properties “in order to better accommodate the
Government’s telecommunications needs,” and “in
consideration” for which the Government of Belize agreed to
give Telemedia a number of assurances and benefits. Gov’t
1
The original party to the Agreement was Belize
Telecommunications Limited. On May 29, 2007, pursuant to the
Belize Telecommunications Undertaking (Belize Telecommunications
Limited Operators) Vesting Act of 2007, the businesses of Belize
Telecommunications Limited were transferred to Belize Telemedia
Limited.
4
Telecomm. Accomodn. Agrmt. § 1, Sept. 19, 2005.2 Telemedia
would be entitled to: a tax set-off for purposes of a guaranteed
15% minimum rate of return, favorable business tax treatment,
and exemption from import taxes. The Agreement stated that it
was governed by Belize law, id. § 15.1, and that if Telemedia
were to bring proceedings against the Government of Belize or
its assets in relation to the Agreement, the Government
“irrevocably and unconditionally” waived its immunity, id.
§ 15.5. Additionally, the Agreement provided:
Any dispute arising out of or in connection with this
Agreement including any question regarding its
existence, validity or termination, which cannot be
resolved amicably between the parties shall be
referred to and finally resolved by arbitration under
the London Court of International Arbitration
(LCIA) Rules which Rules are deemed to be
incorporated by reference under this Section. There
shall be 3 arbitrators.
Id. § 15.2.
On February 8, 2008, a new Prime Minister, who also
served as the Minister of Finance of Belize, publically and
formally announced that he believed the Agreement was invalid
and would not abide by it. Telemedia, claiming breaches of the
Agreement, invoked the arbitration clause and submitted a
request for arbitration to the LCIA on May 9, 2008. Although
notified, the Government of Belize did not participate in the
proceedings. The arbitral tribunal issued a final award on March
2
Belize and Telemedia subsequently adopted three
amendments to the Agreement on November 21, 2005, December 15,
2006, and January 7, 2008. The “Agreement” referenced in this
opinion includes these amendments.
5
18, 2009, (“Final Award”) ruling that the Agreement was valid
and binding on the Government of Belize under Belize law, and
that it had jurisdiction over Telemedia’s claims, which it
concluded were meritorious and entitled Telemedia to
declaratory relief and damages of over 38 million in Belize
dollars. On March 20, 2009, the Prime Minister repeated his
view that the Agreement was illegal and invalid, noted that the
local courts had rejected its provisions on tax exemption, and
stated that the Government of Belize would “not be bound by
any ruling of a foreign arbitral tribunal where that ruling
conflicts with a position taken by Belize’s superior courts.”
Resp’t Mot. Stay or, in Alternative, Dismiss Pet., Exh. 29 (Decl.
Juan Basombrio, Esq. Mar. 26, 2010, attaching newspaper
article quoting Prime Minister). The same day, Telemedia
assigned the monetary portion of the Final Award to Belize
Social Development Limited (“BSDL”), a company
incorporated in the British Virgin Islands.
On April 6, 2009, the Attorney General of Belize sued
Telemedia and BSDL in the Belize Supreme Court, alleging that
“enforcement of the ‘Final Award’ . . . would be contrary and
repugnant to the Constitution and the Laws of Belize,” and
sought to block its enforcement. Id. Exh. 1 (Decl. of Michael
Young, S.C., Mar. 26, 2010, attaching the Fixed Claim Form
1–2). The court issued an ex parte interim injunction
prohibiting Telemedia and BSDL from pursuing enforcement of
the Final Award in any jurisdiction outside of Belize. See id.
Exh. 5 (Order, Apr. 7, 2009, at 2). When Telemedia sought to
have the court discharge the injunction and issue a declaration
that the Final Award was valid and binding on the Government
of Belize, the court, on July 20, 2009, extended the injunction
“until the conclusion of the Claim herein or until further Order.”
Id. Exh. 12 (Order, July 20, 2009, at 2); see id. Exh. 13 (Sup. Ct.
Decision, July 20, 2009).
6
On November 16, 2009, BSDL filed a petition in the district
court here to confirm and enforce the Final Award pursuant to
section 207 of the FAA, 9 U.S.C. § 207. The Government of
Belize moved to stay or, in the alternative, to dismiss the
petition. It also amended the Supreme Court Judicature Act “to
strengthen the provisions relating to contempt of court” by
subjecting persons who fail to comply with an injunction to fines
up to $250,000, or imprisonment for five to ten years, or both,
with an additional fine of $100,000 for each day the offense
continues. Supreme Court of Judicature (Amendment) Act,
2010, c. 91, § 106A (Belize). Citing this enactment, BSDL
moved to suspend the district court’s scheduling order and for
a status conference. The district court denied BSDL’s motion to
suspend and its subsequent motions to clarify. By minute order
of October 12, 2010, the district court granted Belize’s motion
to stay the petition to confirm “pending resolution of the parties’
case before the Belize Supreme Court.”
BSDL appeals the stay order or, in the alternative, if the
order is not final, requests that its appeal be treated as a petition
for a writ of mandamus.
II.
This court has treated an attempted appeal as an application
for a writ of mandamus, and granted effective relief, where a
“stay order as issued exceeded the proper exercise of authority
of the District Court.” Dellinger v. Mitchell, 442 F.2d 782, 782
(D.C. Cir. 1971); see id. at 788–89; cf. Ukiah Adventist Hosp. v.
FTC, 981 F.2d 543, 548–49 & n.6 (D.C. Cir. 1992) (citing
Sierra Rutile Ltd. v. Katz, 937 F.2d 743, 749 (2d Cir. 1991);
Beard v. Carrollton R.R., 893 F.2d 117, 120 (6th Cir. 1989)).
Given the “carefully crafted framework for the enforcement of
international arbitration awards” TermoRio, 487 F.3d at 935,
presented in the FAA and the New York Convention, it is
7
evident that the stay order as issued exceeded the proper
exercise of authority of the district court.
“The traditional use of the writ [of mandamus] in aid of
appellate jurisdiction both at common law and in the federal
courts has been to confine an inferior court to a lawful exercise
of its prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.” Roche v. Evaporated
Milk Assn., 319 U.S. 21, 26 (1943); see Cheney v. Dist. Court
for Dist. of Columbia, 542 U.S. 367, 380 (2004). Because the
writ, see 28 U.S.C. § 1651(a), is a “‘drastic and extraordinary’
remedy,” Cheney, 542 U.S. at 380 (quoting Ex parte Fahey, 332
U.S. 258, 259–60 (1947)), “only exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse of
discretion will justify [its] invocation,” id. (citations and internal
quotation marks omitted). Accordingly, the writ will issue only
upon the satisfaction of three conditions: there must be “no other
adequate means to attain the relief [the petitioner] desires”; “the
petitioner must satisfy the burden of showing that [its] right to
issuance of the writ is clear and indisputable”; and “the issuing
court, in the exercise of its discretion, must be satisfied that the
writ is appropriate under the circumstances.” Id. at 380–81
(citations and internal quotation marks omitted). BSDL’s appeal
satisfies each of these conditions.
1. “Ordinarily mandamus may not be resorted to as a mode
of review where a statutory method of appeal has been
prescribed or to review an appealable decision of record.”
Roche, 319 U.S. at 28. The relief BSDL desires — “forthwith
consideration of” its petition for enforcement — “could
obviously not be preserved for presentation on appeal from the
ultimate disposition of this litigation in the District Court.”
Dellinger, 442 F.2d at 790. Nor is there a statutory method of
appeal applicable to the stay.
8
“[A] stay is not ordinarily a final decision for purposes of
[28 U.S.C.] § 1291,” Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 10 n.11 (1983), but may be where the
effect of the stay is to put the plaintiff “effectively out of court,”
id. at 9; see Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715
n.2 (1962). BSDL invokes the “effectively out of court”
doctrine in support of its appeal. The doctrine’s applicability,
however, “is limited to cases where . . . the object of the stay is
to require all or an essential part of the federal suit to be
litigated” outside of federal court. Moses H. Cone, 460 U.S. at
10 n.11. Because the pending action in Belize has no preclusive
effect on the district court’s disposition of the petition to enforce
pursuant to the FAA and the New York Convention, see N.Y.
Convention art. V(1)(e); Karaha Bodas v. Perusahaan
Pertambangan Minyak, 335 F.3d 357, 367–68 (5th Cir. 2003),
the unidentified “object” of the stay could hardly be “to require
all or an essential part,” Moses H. Cone, 460 U.S. at 10 n.11, of
the enforcement petition to be litigated in Belize. See
Kreditverein der Bank v. Nejezchleba, 477 F.3d 942, 946–47
(8th Cir. 2007); Boushel v. Toro Company, 985 F.2d 406,
408–09 (8th Cir. 1993). The stay at issue may be sufficiently
indefinite as to require a finding of pressing need, see infra
subpart 2, but it is not so indefinite as to constitute the
equivalent of a dismissal under the “effectively out of court”
doctrine. See Dellinger, 442 F.2d at 785. Therefore, the
statutory method of appeal under § 1291, even as applied to stay
orders under the “effectively out of court” doctrine, does not
afford BSDL adequate means to attain the relief it requests.
BSDL also invokes the collateral order doctrine of Cohen
v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). This
court has acknowledged the similarities between the
requirements for mandamus and collateral order review. See In
re Sealed Case No. 98-3077, 151 F.3d 1059, 1063 n.4 (D.C. Cir.
1998) (citing In re Papandreou, 139 F.3d 247, 250 (D.C. Cir.
9
1998)); In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir. 1996); see
also 16 CHARLES A. WRIGHT, ARTHUR R. MILLER, & EDWARD
H. COOPER, FEDERAL PRACTICE & PROCEDURE § 3932.1, at 510
& n.32.5 (2d ed. 1996 & Supp. 2011). In cases where “the claim
of appealability [is] not insubstantial,” the court is mindful of
“the advantage of limiting the use of appellate recourse in
response to stay orders, yet keeping the door open for the
occasional case reflecting abuse of discretionary authority.”
Dellinger, 442 F.2d at 790. Because BSDL has shown a clear
and indisputable right to the issuance of the writ and the writ is
appropriate here, we proceed with the analysis under the
mandamus framework. See In re Sealed Case No. 98-3077, 151
F.3d at 1063 n.4; cf. United States v. Gonzales, 150 F.3d 1246,
1250 n.1 (10th Cir. 1998), cert. denied 525 U.S. 1129 (1999).
2. BSDL has shown a “clear and indisputable” right to the
issuance of the writ, for the issuance of the stay was not based
on a ground set forth in the New York Convention. Under the
FAA, Articles V(1)(e) and VI of the New York Convention
provide the only grounds on which the district court “may, if it
considers it proper, adjourn the decision” on enforcement: “If an
application for the setting aside or suspension of the award has
been made to a competent authority,” N.Y. Convention art. VI,
“of the country in which, or under the law of which, that award
was made,” id. art. V(1)(e) (emphasis added). See 9 U.S.C.
§ 207.
In support of the stay, the Government of Belize relies on
section 15.1 of the Agreement, which states the law of Belize
governs the Agreement, in contending that Belize is the country
“under the law of which” the Final Award was made.3 The
3
The fact that Belize is not a party to the New York
Convention is irrelevant. If the place of the award is “in the territory
of a party to the Convention, all other Convention states are required
10
phrase “under the law of which” in Article V(1)(e), however,
refers to the procedural law governing the arbitration, not the
substantive law governing the Agreement. See Karaha Bodas
v. Perusahaan Pertambangan Minyak, 364 F.3d 274, 289 (5th
Cir. 2004); Alghanim & Sons, 126 F.3d at 21 & n.3; M & C
Corp. v. Erwin Behr GmbH & Co., 87 F.3d 844, 847–48 (6th
Cir. 1996); Int’l Trading & Indus. Inv. Co. v. DynCorp
Aerospace Tech., 763 F. Supp. 2d 12, 21 n.5 (D.D.C. 2011);
Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima, 745 F.
Supp. 172, 177–78 (S.D.N.Y. 1990); RESTATEMENT (THIRD) OF
INT’L COMM. ARB. § 5–12 (2010). The Government of Belize
cites no authority to the contrary. The Agreement provides that
the LCIA Rules govern arbitration arising from any dispute over
its terms. Because the arbitration occurred in London and under
the arbitral laws of England, the courts of England are the
competent authority with primary jurisdiction over the Final
Award; absent proceedings for setting aside or suspending the
Final Award in those courts, the Government of Belize can offer
no basis on which to conclude that the stay of BSDL’s petition
for enforcement was properly issued under the FAA and New
York Convention.4
to recognize and enforce the award, regardless of the citizenship or
domicile of the parties to the arbitration.” Creighton Ltd. v. Gov’t of
the State of Qatar, 181 F.3d 118, 121 (D.C. Cir. 1999). The Award
was rendered in London, and BSDL seeks enforcement in the United
States; both England and the United States are parties to the New York
Convention.
4
The possibility of “multiple judicial proceedings on the
same legal issues” affords the district court no other justification for
the stay, for these “are characteristic of the confirmation and
enforcement of international arbitral awards under the Convention.”
Karaha Bodas, 335 F.3d at 368.
11
Furthermore, to the extent the stay purported to be issued
pursuant to the district court’s inherent authority in the interest
of judicial economy, “[t]he applicable jurisprudence appears in
Landis v. North American Co., 299 U.S. 248 (1936).” Dellinger,
442 F.2d at 786; see McSurely v. McClellan, 426 F.2d 664 (D.C.
Cir. 1970); cf. Obaydullah v. Obama, 609 F.3d 444, 449 (D.C.
Cir. 2010). In Landis, the Supreme Court instructed that a court
abuses its discretion in ordering a stay “of indefinite duration in
the absence of a pressing need.” 299 U.S. at 255. A stay is
“immoderate and hence unlawful unless so framed in its
inception that its force will be spent within reasonable limits, so
far at least as they are susceptible of prevision and description,”
and “an order which is to continue by its terms for an
immoderate stretch of time is not to be upheld as moderate
because conceivably the court that made it may be persuaded at
a later time to undo what it has done.” Id. at 257. Underlying
the Court’s analysis was a recognition that “[o]nly in rare
circumstances will a litigant in one cause be compelled to stand
aside while a litigant in another settles the rule of law that will
define the rights of both.” Id. at 255.
The scope of the stay and the reasons for its issuance
determine whether a stay is immoderate. For instance, in
Trujillo v. Conover & Co. Communications, 221 F.3d 1262,
1264 (11th Cir. 2000), the Eleventh Circuit held that a stay until
“the Bahamanian Courts conclude their review” of related
litigation was immoderate because it was indefinite in scope and
the order provided “no reason sufficient to justify the indefinite
stay.” Id. at 1264–65. The Government of Belize would
distinguish Trujillo, along with Landis and presumably
Dellinger, by interpreting those stays to encompass all possible
appeals, while here the stay encompasses only the case pending
before the Belize Supreme Court. Yet the record fails to show
either what a “resolution” of that case would entail or when such
a resolution is likely to be reached, and so the stay has “the legal
12
effect of preventing [BSDL] from proceeding with [its] claims
in federal court for an indefinite period of time, potentially for
years.” King v. Cessna Aircraft Co., 505 F.3d 1160, 1169 (11th
Cir. 2007). The Government of Belize is not in a position to
offer the rationales in Dellinger, 442 F.2d at 785, where the U.S.
government expressed concern that proceeding with a civil case
would circumvent court orders in a criminal case and suggested
resolution of the latter would result in stipulations between the
parties in the former. Such concerns would be irrelevant under
the FAA and the New York Convention, and there appears to be
no possibility of a stipulation here. And unlike in Trujillo, 221
F.3d at 1264; see also King, 505 F.3d at 1172, the stay order
includes no provision for status updates or further review.
Hence, the stay as issued is sufficiently indefinite to require
a finding of a pressing need under Landis. The Government’s
suggestion such a finding is required only where there is a “fair
possibility that the stay will work damage to someone else,”
Appellee’s Br. 27 (quoting Landis, 299 U.S. at 255), ignores that
in Landis sufficient damage consisted of undue delay of the kind
BSDL suffers here. See Landis, 299 U.S. at 256. As this court
has interpreted and applied Landis, a district court’s issuance of
an indefinite stay order must be supported by “a balanced
finding that such need overrides the injury to the party being
stayed.” Dellinger, 442 F.2d at 787. And the court has vacated
stay orders where “the [d]istrict [c]ourt has not advanced any
reason for a stay of such potentially long duration.” McSurely,
426 F.2d at 671; cf. Dellinger, 442 F.2d at 787. Here, as in
Dellinger and McSurely, no articulation of need, pressing or
otherwise, accompanied issuance of the stay order. Nor did the
district court engage in the interest balancing required by
Landis, which calls for the district court, in “the exercise of
judgment,” to “weigh competing interests and maintain an even
balance,” 299 U.S. at 254–55, between the court’s interests in
judicial economy and any possible hardship to the parties, see id.
13
at 259. Therefore the order as issued, staying BSDL’s petition
pending foreign litigation of indefinite duration, exceeded the
proper exercise of discretion by the district court under Landis.
3. Mandamus is appropriate because the FAA, by codifying
the New York Convention, provides a carefully structured
scheme for the enforcement of foreign arbitral awards and
represents an “emphatic federal policy in favor of arbitral
dispute resolution,” which “applies with special force in the field
of international commerce.” Mitsubishi Motors Corp., 473 U.S.
at 631. The plain terms of the FAA instruct a district court
reviewing a foreign arbitral award to “confirm the award unless
it finds one of the grounds for refusal or deferral of recognition
or enforcement . . . specified in the [New York] Convention.”
9 U.S.C. § 207 (emphasis added). No such finding supported
issuance of the stay here, and that alone is sufficient to justify
mandamus. Moreover, there could not have been such a finding
under Article VI of the Convention, for no “application for the
setting aside or suspension of the award” had been made to a
“competent authority” in England, the “country in which” and
“under the laws of which [the] award was made.” N.Y.
Convention arts. V(1)(e), VI.
Given the federal courts’ “virtually unflagging obligation
. . . to exercise the jurisdiction given them,” Hoai v. Sun Ref. &
Mktg. Co., 866 F.2d 1515, 1519 (D.C. Cir. 1989) (quoting
Moses H. Cone, 460 U.S. at 15) (internal quotation marks
omitted), the original jurisdiction vested in the district court by
section 203 of the FAA and the limitations on that authority
under section 207 of the FAA defined the district court’s task:
to review and grant BSDL’s petition to confirm the Final Award
absent a finding that an enumerated exception to enforcement
specified in the New York Convention applied. The stay order
as issued was not in conformity with federal law and
international commitments, and the indefinite stay, lacking
14
justification by any pressing need, exceeded the bounds of any
inherent authority the district court may have had to stay
proceedings in the interest of judicial economy. Mandamus is
appropriate here “to compel the district court to exercise its
authority when it is its duty to do so.” Roche, 319 U.S. at 26.
Our dissenting colleague makes much of the lack of an
opposition to the stay. Instead of filing an opposition to the
motion for a stay, BSDL filed a motion to suspend the
scheduling order and for a status conference, advising the
district court that its failure to respond was based not on
agreement that a stay was warranted but on fear of criminal
sanctions for violation of the anti-enforcement injunction issued
by the Supreme Court of Belize. Both BSDL’s petition to
enforce the Final Award and Belize’s motion to stay the
enforcement proceedings alerted the district court that it was
obligated to proceed in accordance with the FAA and the New
York Convention. Contravening the clear dictates of this
governing law, both federal and international, and lacking
supporting reasoning of any kind, contrary to Supreme Court
precedent, the district court’s stay order is extraordinary in
nature. Although our dissenting colleague repeatedly
characterizes the stay order — which has already lasted for more
than a year — as “temporary, ” Dis. Op. 1, it in fact contained
no temporal limitations and could very well last indefinitely.
We conclude that there is no need to vacate the stay or
mandate any action by the district court; instead, we remand the
case because this court may “rightfully assume that the [district]
court will conduct further proceedings not inconsistent with our
opinion,” Dellinger, 442 F.2d at 790.
KAVANAUGH, Circuit Judge, dissenting:
I respectfully dissent. This case arises out of a messy
commercial dispute between a Belize company and the
Government of Belize. A London arbitration panel ruled in
favor of the Belize company. The company then sued in U.S.
District Court to enforce the arbitration award. Because of
ongoing judicial proceedings in Belize related to this matter,
the Government of Belize asked for a temporary stay, which
was uncontested by the company. The District Court then
entered a temporary stay – understandably, since the stay is
only temporary and the company did not oppose it.
The company has now appealed and, in the alternative,
sought mandamus to overturn the temporary stay. But we do
not have appellate jurisdiction. As the majority opinion
appears to acknowledge, there is no final order because the
company was not placed “effectively out of court,” nor does
this case fit within the narrow confines of the collateral order
doctrine. See Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 10 n.11 (1983) (“most stays do not
put the plaintiff ‘effectively out of court’”; stays are final
orders when “the object of the stay is to require all or an
essential part of the federal suit to be litigated in a state
forum”); id. at 12 (stay order falls within collateral order
doctrine when it “amounts to a refusal to adjudicate the
merits”).
Although the majority opinion does not assert that we
have appellate jurisdiction under the principles governing
appeals of final or collateral orders, it invokes mandamus
jurisdiction. But mandamus is an “extraordinary” remedy
reserved for correcting egregious missteps by a district court,
not for upending temporary stay orders – and particularly not
temporary stay orders like the one here, which was issued in
response to an uncontested temporary stay motion. See
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (writ of
2
mandamus “is a drastic and extraordinary remedy reserved for
really extraordinary causes”) (internal quotation marks
omitted); id. (“the writ is one of the most potent weapons in
the judicial arsenal”) (internal quotation marks omitted); id.
(“only exceptional circumstances amounting to a judicial
usurpation of power or a clear abuse of discretion will justify
the invocation of this extraordinary remedy”) (citations and
internal quotation marks omitted).
Even if we think the District Court erred under the
Federal Arbitration Act by entering a temporary stay, its error
was hardly “extraordinary.” Mandamus for this case is akin
to using a chainsaw to carve your holiday turkey. Indeed, if
you ask me which is the more extraordinary – the District
Court’s temporary stay or this Court’s invocation of
mandamus jurisdiction under these circumstances – I would
say the latter.
I would dismiss the appeal for lack of appellate
jurisdiction and deny the petition for a writ of mandamus. I
respectfully dissent.