Appellate Decisions

Appealable Orders, Not Appealable Documents

Just because the entirety of an “order” is appealable does not mean that other orders in the same document are appealable, too.

August 5, 2023

By Bryan Lammon

Courts have held that when an “order” is appealable—say, via a certified appeal under 28 U.S.C. § 1292(b) or an exception to 28 U.S.C. § 1447(d)’s bar on remand appeals—the entirety of the district court’s order is within the scope of appeal. So when a district court certifies an order for an immediate appeal under § 1292(b), the entire order is within the scope of appeal, not just the issue that the district court thought warranted review. And when a case is removed on one of the grounds that § 1447(d) excepts from the general bar on remand appeals, the entire remand order is appealable, not just the excepted ground.

In Boshears v. PeopleConnect, Inc., the Ninth Circuit noted that there are limits on what it means for an “order” to be appealable. There’s a difference between orders and the documents that contain them. So even if an order is appealable, other orders contained in the same document are not.

The Two Orders in Boshears

The defendant in Boshears sought two forms of relief. First, the defendant sought an order compelling arbitration. Alternatively, it moved to dismiss the complaint for failure to state a claim. The district court denied both.

The defendant then appealed. And in that appeal, it sought review of both the arbitration and dismissal decisions.

The Argument for Including the Motion-to-Dismiss Denial

The Ninth Circuit had jurisdiction over the arbitration denial under 9 U.S.C. § 16(a), which permits appeals from “an order” that (among other things) denies a petition to seek arbitration under the Federal Arbitration Act.

As for the motion-to-dismiss denial, the defendant argued that it was in the same “order” as the arbitration denial and thus within the scope of appeal. The defendant found support for this argument in the Supreme Court’s recent decision in BP P.L.C. v. Mayor & City of Baltimore. That case involved an appeal from a remand order, which 28 U.S.C. § 1447(d) generally prohibits. But § 1447(d) contains an exception for “an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443.” In BP, the Supreme Court held that if a defendant invokes either § 1442 or § 1443 in removing a case, the defendant can appeal a remand order and obtain review of all proffered grounds for removal. That’s because the exception allows for review of the “order” remanding the action. Review of a remand order thus means review of the propriety of the remand, not just some of the proffered bases for removal that the district court rejected in the course of remanding.

Distinguishing Orders & Documents

But there’s a difference, the Ninth Circuit explained, between an “order” and a “document”:

An “order” refers to a “written direction or command,” not to the document in which that “direction or command” is “delivered by a court or judge” to the parties.

So a single document can contain multiple orders, “particularly when a party requests multiple forms of relief at the same time.” Resolution of each request is a separate order—that is, a separate written direction or command. Those orders do not become a single order from their inclusion in a single document.

As for BP, the case’s reasoning suggests only that § 16(a) appeals encompass “all of the reasoning in an order denying a motion to compel arbitration.” The motion to dismiss had nothing to do with the denial of arbitration. So the motion-to-dismiss denial was not within the scope of the appeal.

Boshears v. PeopleConnect, Inc., 2023 WL 4940430 (9th Cir. Aug. 3, 2023), available at the Ninth Circuit and Westlaw

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