Ninth Circuit: No Automatic Stays for Remand Appeals
In People ex rel Harrison v. Express Scripts, Inc., the Ninth Circuit held that an appeal from a remand order does not automatically stay the remand. In so holding, the Ninth Circuit weighed in on the split over whether the Supreme Court’s recent decision in Coinbase, Inc. v. Bielski requires a stay after a remand appeal. Most courts hold that stays are optional and governed by Nken v. Holder. Only the Fourth Circuit has held that stays are mandatory.
The Remand Appeal in Harrison
Harrison started in California state court. The plaintiff contended that the defendant prescription companies were “liable under California’s public nuisance statute for contributing to the public nuisance of the opioid epidemic through their prescription opioid business practices.” The defendants removed the action to federal court. They argued that subject-matter jurisdiction existed under the federal-officer-removal statute, as their business involved contracts with several federal agencies.
The plaintiff responded by amending its complaint to expressly limit the claims to the defendants’ “conduct in the non-federal market.” The plaintiff also moved to remand, which the district court granted.
The defendants then appealed. (Although remand orders are normally not appealable under 28 U.S.C. § 1447(d), an exception exists when removal was based on the federal-officer-removal statute.) They also asked the district court to stay the remand order pending the appeal. But the district court refused.
No Mandatory Stays in Remand Appeals
The defendants then turned to the Ninth Circuit for a stay. And they argued that a stay was mandatory under Coinbase.
The Coinbase Rule for Arbitration Appeals
Coinbase held that district courts must stay proceedings on the merits once a party appeals from the denial of arbitration. The reason was largely the Griggs rule. Because only one court should deal with an action at a time, the filing of a notice of appeal normally deprives the district court of jurisdiction over any matters involved in the appeal. In Coinbase, the Supreme Court reasoned that when an appeal asks whether a dispute should proceed in court or arbitration, the entire action is involved in the appeal. So the district court lacks jurisdiction to proceed and must stay its hand.
The defendants in Harrison argued that remand appeals should be treated the same:
Because the question on appeal is whether the case belongs in federal or state court, Defendants argue that the entire case is essentially involved in the appeal, and therefore an automatic stay of all proceedings is warranted under Coinbase’s application of the Griggs principle.
Distinguishing Arbitration & Remand Appeals
The Ninth Circuit disagreed. The court saw four reasons why a stay was not required.
First, Coinbase was a “carveout to the normal discretionary stay powers in the arbitration context.” It thus did not overrule Nken’s guidelines for stays on appeal.
Second, federal officer removal implicates federalism interests that arbitration does not. An automatic stay could infringe on the authority of state courts. Discretionary stays, in contrast, permit a more nuanced approach that accounts for comity concerns.
Third, the differences between arbitration and litigation that drove the Coinbase decision do not apply when choosing between state and federal court. So a remand appeal involves only a narrow venue question, not the entirety of the action.
Finally, automatic stays would encourage gamesmanship, as defendants could use them to delay proceedings and wear down plaintiffs.
People ex rel Harrison v. Express Scripts, Inc., 2025 WL 1551414 (9th Cir. June 2, 2025), available at the Ninth Circuit and Westlaw
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