Virginia Van Dusen v. Swift Transportation Co
830 F.3d 893
| 9th Cir. | 2016Background
- Van Dusen and Sheer signed contractor agreements with Swift containing broad arbitration clauses; they sued Swift alleging misclassification and wage-law violations.
- Case was filed in S.D.N.Y., transferred to D. Ariz.; Swift moved to compel arbitration and to stay/dismiss the district action.
- The district court initially referred a §1 FAA exemption question (whether contractors are exempt from the FAA) to an arbitrator; Ninth Circuit in In re Van Dusen (654 F.3d 838) held the court should decide that issue.
- On remand the district court set a discovery and trial-oriented case-management schedule to resolve the §1 employee/independent-contractor question and denied Swift’s request for a briefing-only process; the court said its order was not immediately appealable and later certified the scheduling order for interlocutory appeal.
- Swift appealed, arguing the scheduling order functionally denied its motion to compel arbitration and thus was immediately appealable under 9 U.S.C. §16(a)(1)(B).
- The Ninth Circuit concluded the scheduling order was not a final or collateral-order appealable decision and that §16(a) does not authorize interlocutory appeals absent an actual denial of a petition to compel arbitration; the appeal was dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court of appeals has jurisdiction under 9 U.S.C. §16(a)(1)(B) to review a district court case-management/scheduling order that sets discovery and trial to resolve the §1 FAA exemption | Van Dusen: the scheduling order is not an appealable denial; no jurisdiction for Swift | Swift: the scheduling order effectively denies a motion to compel arbitration and so is appealable under §16(a)(1)(B) | No jurisdiction: §16(a)(1)(B) requires an actual order denying a petition to compel arbitration; a scheduling order is not such a denial |
| Whether the scheduling order is a collateral order under the Cohen/Swint doctrine (i.e., final for §1291 despite interlocutory posture) | Van Dusen: the order is routine, not conclusive or effectively unreviewable later | Swift: delay and preclusive merits proceedings could frustrate arbitration rights | Not collateral-order appealable: the order is not conclusive, separate from merits, nor effectively unreviewable after final judgment |
| Whether courts may imply an “effective denial” doctrine to expand §16 appellate jurisdiction | Van Dusen: statutory text controls; no implied expansion | Swift: FAA’s policy favoring arbitration supports broader interlocutory review to avoid hostile procedures | Rejected: statutory text governs; courts may not judicially expand §16 to create an “effective denial” theory |
| Whether prior Ninth Circuit rulings (Van Dusen I/II) require immediate appellate review of the scheduling order | Van Dusen: prior rulings required the district court to decide §1, but not immediate interlocutory review | Swift: remand and prior rulings mean any order impeding arbitration warrants review now | Court: prior rulings guide the district court’s role but do not confer §16 interlocutory jurisdiction over a scheduling order |
Key Cases Cited
- Swint v. Chambers Cty. Comm’n, 514 U.S. 35 (1995) (sets narrow collateral-order criteria for interlocutory appeals)
- Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) (practical construction of finality and collateral-order doctrine)
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (foundational collateral-order doctrine decision)
- Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79 (2000) (§16 limits appellate review to specified orders; courts may not expand appeals based on arbitration policy)
- Johnson v. Jones, 515 U.S. 304 (1995) (general rule that appellate courts lack jurisdiction over interlocutory orders absent statutory exception)
- Nat’l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432 (9th Cir. 1997) (practical test for finality under §1291)
- Grosvenor v. Qwest Corp., 733 F.3d 990 (10th Cir. 2013) (refusing to treat every post-§4 litigation order as immediately appealable)
- Conrad v. Phone Directories Co., 585 F.3d 1376 (10th Cir. 2009) (§16 jurisdiction confined to motions explicitly brought under the FAA)
- Campbell v. Gen. Dynamics Gov’t Sys. Corp., 407 F.3d 546 (1st Cir. 2005) (§16’s enumerated categories cannot be read as a general gateway for immediate appeal of all orders hostile to arbitration)
- Bombardier Corp. v. Nat’l R.R. Passenger Corp., 333 F.3d 250 (D.C. Cir. 2003) (rejecting view that any order hostile to arbitration is immediately appealable)