Marquette Law Review Volume 63 Article 2 Issue 1 Fall 1979 Appealability of District Court Orders Staying Court Proceedings Pending Arbitration Pamela Mathy Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Pamela Mathy, Appealability of District Court Orders Staying Court Proceedings Pending Arbitration, 63 Marq. L. Rev. 31 (1979). Available at: http://scholarship.law.marquette.edu/mulr/vol63/iss1/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. THE APPEALABILITY OF DISTRICT COURT ORDERS STAYING COURT PROCEEDINGS PENDING ARBITRATION PAMELA MATHY* I. FORMULATING THE PROBLEM The established prerequisite of review in the federal courts of appeals has been the condition that an appeal can be taken only from "final orders or decisions" or from specified inter- locutory orders which grant or deny injunctions.' In 1934 the United States Supreme Court was presented with an issue of first impression: should a nonfinal district court order which grants or denies a stay of court proceedings until the comple- tion of arbitration be considered an appealable interlocutory order.2 Prior to the fusion of law and equity, orders entered by a court of equity which stayed proceedings at law uniformly were appealable. In Enelow v. New York Life Insurance Co., the Supreme Court analogized this rule in equity to an order entered after the fusion of law and equity which stayed pro- ceedings at law pending resolution of an equitable claim or defense.3 The Court found the analogy to be dispositive and held that such an order, though interlocutory, was an appeala- ble injunction and thus subject to immediate appellate review. Since 1935 the Supreme Court on four occasions has ampli- fied the scope of appellate jurisdiction over the noted -species of order.4 In the end, a clear-cut, arbitrary and mechanical rule was fashioned and reaffirmed. This rule, almost self-applying once it is understood, has been followed rigorously by most circuit courts of appeals.5 The present rule on the appealability of stay orders achieves highly predictable results but turns on the historical distinction between proceedings at law and in * J.D., University of Wisconsin, 1978; M.A., University of Texas-Austin, 1976; A.B., Marquette University, 1973. Member of the bars of the District of Columbia, Illinois and Wisconsin. 1. See notes 7, 10, & 16 infra. 2. See text accompanying notes 7-45 infra. 3. 293 U.S. 379, 381-82 (1935). See text accompanying notes 13-18 infra. 4. See text accompanying notes 18-45 infra. 5. See note 9 and section II, part B infra. There has been expressed dissatisfaction with the rule, however. See, e.g., Wallace v. Norman Indus., Inc., 467 F.2d 824, 827 (5th Cir. 1972) discussed at text accompanying notes 69-75 infra. MARQUETTE LAW REVIEW [Vol. 63:31 equity which is irrelevant to considerations underlying the need for immediate appellate review of stay orders. It is the thesis of this article that an alternative rule can be fashioned which will grant or deny appeal of stay orders with reference to a constellation of factors. The proposed rule is no more diffi- cult to apply and should not result in a greater number of appeals. After briefly setting out the relevant statutes describing appellate jurisdiction, an analysis of Supreme Court law from Enelow to the present will be undertaken. A brief summary of those problems causing the most difficulty at the court of ap- peals level in applying the Supreme Court law follows.' The third section of the article will assess the present law in light of the policy reasons underlying arbitration and the concomi- tant desirability of permitting appellate review of stay orders. The main premise of the third section is that parties should be encouraged to enter into lawful and binding arbitration agreements which might remove the necessity of recourse to the courts. To accomplish a conservation of judicial resources it is necessary that some decision-making authority, in the practi- cal if not in the absolute sense, be delegated to the arbitrator selected by the parties and, in the second instance, to the dis- trict courts. Once a district court has determined that the arbi- tration agreement encompasses the contested issues and that no exigent countervailing reason exists for the exercise of fed- eral jurisdiction prior to arbitration, there should be no need to resort to immediate appellate review. While a case-by-case rule is flexible in its application and is somewhat unpredictable in the results it mandates, there is no reason why standards similar in principle to those which apply to a district court's grant or denial of an injunction cannot be adopted with refer- ence to appellate review of orders staying district court pro- ceedings pending arbitration. Finally, a number of concrete proposals are set out in order to aid both litigants and courts which must deal with the Enelow-Ettelson rule. 6. See text accompanying notes 46-186 infra. For an example of how the appealabil- ity of a stay order is procedurally raised within the context of a suit, see text accompa- nying notes 55-56 infra; see also note 63 infra. 19791 APPEALABILITY OF STAY ORDERS II. COURT-MADE LAW ON THE APPEALABILITY OF ORDERS STAYING COURT PROCEEDINGS PENDING ARBITRATION Section 1291 of the federal Judicial Code provides that the federal courts of appeals have jurisdiction over appeals from all "final decisions" of the federal district courts.7 The United States Supreme Court and the lower federal courts have uni- formly held s that district court orders staying or refusing to stay legal proceedings pending arbitration are interlocutory and thus are not appealable under section 1291.1 Thus, the 7. 28 U.S.C. § 1291 (1976) provides in its entirety: The courts of appeals shall have jurisdiction of appeals from all final deci- sions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. 8. But see Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 185-86 (1955) (Black, J., dissenting). 9. The Supreme Court cases are: Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176 (1955); City of Morgantown v. Royal Ins. Co., 337 U.S. 254 (1949); Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188 (1942); Schoenamsgruber v. Hamburg Am. Line, 294 U.S. 454 (1935); Shanferoke Coal & Supply Corp. v. Westchester Serv. Corp., 293 U.S. 449 (1935); Enelow v. New York Life Ins. Co., 293 U.S. 379 (1935). The Circuit Court of Appeals cases are: Weissbuch v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 558 F.2d 831 (7th Cir. 1977); Zell v. Jacoby-Bender, Inc., 542 F.2d 34 (7th Cir. 1976); Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975); Rodgers v. United States Steel Corp., 508 F.2d 152 (3d Cir.), cert. denied, 423 U.S. 832 (1975); Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293 (5th Cir. 1974); Danford v. Schwabacher, 488 F.2d 454 (9th Cir. 1974); Mercury Motor Express v. Brinke, 475 F.2d 1086 (5th Cir. 1973); J.S. & H. Constr. Co. v. Richmond City Hosp. Auth., 473 F.2d 212 (5th Cir. 1973); Wallace v. Norman Indus., Inc., 467 F.2d 824 (5th Cir. 1972); New England Power Co. v. Asiatic Petroleum Corp., 456 F.2d 183 (1st Cir. 1972); In re Revenue Properties Litigation Cases, 451 F.2d 310 (1st Cir. 1971); County of Middlesex v. Gevyn Constr. Corp., 450 F.2d 53 (1st Cir. 1971), cert. denied, 405 U.S. 955 (1972); Dickstein v. du Pont, 443 F.2d 783 (1st Cir. 1971); Western Geophysical Co. of America v. Bolt Assocs., Inc., 440 F.2d 765 (2d Cir. 1971); Southeastern Enameling Corp. v. General Bronze Corp., 434 F.2d 330 (5th Cir. 1970); United Transp. Union v. Illinois Cent. R.R., 433 F.2d 566 (7th Cir. 1970), cert. denied, 402 U.S. 915 (1971); Hart v. Orion Ins. Co., 427 F.2d 528 (10th Cir. 1970); Power Replacements Inc. v. Air Preheater Co., 427 F.2d 980 (9th Cir. 1970); Greater Continental Corp. v. Schechter, 422 F.2d 1100 (2d Cir. 1970); H.W. Caldwell & Sons v. United States, 407 F.2d 21 (5th Cir. 1969); Chapman v. International Ladies' Garment Workers' Union, 401 F.2d 626 (4th Cir. 1968); Hilti, Inc. v. Oldach, 392 F.2d 368 (1st Cir. 1968); American Safety Equip. Corp. v. J.P. McGuire & Co., 391 F.2d 821 (2d Cir. 1968); Carcich v. Rederi A/B Nordie, 389 F.2d 692 (2d Cir. 1968); Standard Chlorine, Inc. v. Leonard, 384 F.2d 304 (2d Cir. 1967); Blount Bros. Constr. Co. v. Troitino, 381 F.2d 267 (D.C. Cir. 1967); Travel Consultants, Inc. v. Travel Management Corp., 367 F.2d 334 (D.C. Cir. 1966); Wirtz v. Mississippi Publishers Corp., 364 F.2d 603 (5th Cir. 1966); Alexander v. Pacific Maritime Ass'n, 332 F.2d 266 (9th Cir.), cert. denied, 379 U.S. 882 (1964); Jackson Brewing Co. v. Clarke, 303 F.2d 844 (5th Cir.), cert. denied, 371 U.S. 891 MARQUETTE LAW REVIEW [Vol. 63:31 question of appealability turns on whether granting or denying a stay pending arbitration is tantamount to the granting or denial of an injunction within the meaning of section 1292(a)(1).'1 An examination of the applicable case law shows that the consensus of the courts has been to consider a stay pending arbitration tantamount to the granting or denial of an injunction pursuant to section 1292(a)(1), if the stay has been sought in an action at common law in order to permit the prior determination of an equitable claim or defense.