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
The Supreme Court granted cert in GEO Group, Inc. v. Menocal. The case asks if defendants can immediately appeal from the denial of derivative sovereign immunity via the collateral-order doctrine. I wrote about the petition and the underlying circuit split earlier this year. And I wrote about the Tenth Circuit decision from which the petition stems […]
Continue reading....
In Grippa v. Rubin, the Eleventh Circuit addressed the immediate appealability of Florida’s absolute and qualified litigation privileges. The court determined that the absolute privilege was immediately appealable via the collateral-order doctrine. But the qualified litigation privilege was not.
Continue reading....
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....Recent Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....