Page:Coinbase, Inc. v. Bielski.pdf/12

Rh stay requirement in 1988, the relevant subsection already contained a provision, §1292(d)(3), that expressly made stays of proceedings in certain courts discretionary rather than mandatory. To avoid any misinterpretation of §1292(d)(4) because of that preexisting language in §1292(d)(3), Congress specified the right to an automatic stay pending appeal in §1292(d)(4). That unusual circumstance does not diminish the operation of the Griggs rule in the context of arbitrability appeals.

Third, Bielski contends that requiring an automatic stay would create a special, arbitration-preferring procedural rule. That is incorrect. In fact, Bielski’s proposed approach would disfavor arbitration. Applying the Griggs rule here simply subjects arbitrability appeals to the same stay principles that courts apply in other analogous contexts where an interlocutory appeal is authorized, including qualified immunity and double jeopardy. Bielski further points to forum selection clauses as an analogy. But unlike §16(a) arbitrability appeals, Congress has not created a right to an interlocutory appeal for cases involving forum selection clauses. So a stay in the forum selection context could be required only in those cases where there is a certified §1292(b) interlocutory appeal of the forum selection issue.

Fourth, Bielski suggests that there is no need for an automatic stay because the ordinary discretionary stay factors would adequately protect parties’ rights to an interlocutory appellate determination of arbitrability. To begin with, experience shows that Bielski is incorrect. District courts and courts of appeals applying the usual four-factor standard for a discretionary stay often deny stays in §16(a) appeals because courts applying that test often do not consider litigation-related burdens (here, from the continued District Court proceedings) to constitute irreparable harm. See Nken v. Holder, 556 U. S. 418, 434–435 (2009); FTC v. Standard Oil Co. of Cal., 449 U. S. 232,