Arbitration, Immunity & the Collateral-Order Doctrine
In Ashley v. Clay County, the Fifth Circuit held that a municipal defendant could appeal a district court’s refusal to resolve an immunity defense despite the district court’s ordering arbitration.
Simplying a bit, Ashley involved a former hospital employee’s suit against a hospital and the county that owned the hospital. The hospital moved to compel arbitration under the plaintiff’s contract. And the county moved to dismiss the plaintiff’s claim on governmental-immunity grounds.
Despite the county’s never seeking arbitration or even being a party to the plaintiff’s contract, the district court ordered that the plaintiff’s claims against both defendants proceed to arbitration. The county then appealed, arguing that it was wrongly ordered to participate in arbitration and that the claims against it should have been dismissd on immunity grounds.
The Fifth Circuit noted a tension in its appellate jurisdiction. Denials of governmental immunities are often immediately appealable under the collateral-order doctrine. The county had effectively been denied immunity and normally could appeal. But 9 U.S.C. § 16(b) generally bars appeals from many decisions ordering arbitration under the Federal Arbitration Act. Given the district court district court had ordered arbitration, § 16(b)(2) seemed to bar the appeal.
The Fifth Circuit resolved this tension by explaining that it was not reviewing the propriety of the arbitration order. The court of appeals would instead address the decisional-sequencing issue: did the district court need to resolve the immunity defense before ordering arbitration? But the Fifth Circuit did not decide immunity in the first instance. It instead remanded the case for the district court to address it in the first instance.
Ashley v. Clay County, 2025 WL 64013 (5th Cir. Jan. 10, 2025), available at the Fifth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
In McEvoy v. Diversified Energy Co., the Fourth Circuit dismissed a somewhat convoluted invocation of sovereign immunity. The defendants appealed to argue that a district court’s Rule 19 decision effectively denied a non-party’s sovereign immunity. But the defendant had never itself sought immunity. Nor had the actual immunity holder intervened to protect its interests. The […]
Continue reading....
In Hines v. Stamos (no PDF currently available), the Fifth Circuit spoke at length about its jurisdiction to review a personal-jurisdiction defense as part of an arbitration appeal. But the discussion was entirely unnecessary. The district court had never ruled on the personal-jurisdiction defense, meaning that there was no order to review. And the panel […]
Continue reading....
In Smith v. Spizzirri, the Supreme Court held that district courts must stay—not dismiss—an action if the district court orders arbitration and a party requests a stay. The decision resolves a long-standing split over the ability to dismiss actions after ordering arbitration. The decision also has implications for appellate jurisdiction. As I’ve explained on this […]
Continue reading....
In Amisi v. Brooks, the Fourth Circuit held that defendants can immediately appeal from the refusal to dismiss a claim as barred by the Virginia Workers’ Compensation Act. The court thought that the Act provided an immunity from litigation. And that, apparently, was all that was necessary for an appeal via the collateral-order doctrine. But […]
Continue reading....
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 […]
Continue reading....Recent Posts
Perlman Appeals in the Grand Jury Context In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally […]
Continue reading....
In Fleming v. United States, the Eleventh Circuit became the fifth court of appeals to reject pure Bivens appeals. The court held that federal officials cannot immediately appeal the Bivens question without also appealing the denial of qualified immunity. Unlike some of the prior decisions, this one was unanimous. And it puts the government’s record […]
Continue reading....
Last month produced decisions involving a variety of appellate-jurisdiction issues. The Fifth Circuit decertified a § 1292(b) appeal. Judge Pillard of the D.C. Circuit explained that appellate “standing” does not require re-establishing standing in the court of appeals. The Sixth Circuit said that qualified immunity and an action’s merits are intertwined, which suggests (perhaps unintentionally) […]
Continue reading....
A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.
Continue reading....
Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel. Last week, the Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after […]
Continue reading....