Jackson, J., dissenting
First, Congress expressly mandated a general interlocutory stay in another provision of the same 1988 law that enacted §16. See 102 Stat. 4652, 4670–4671. Like §16, that other provision—codified at 28 U. S. C. §1292(d)(4)—authorizes interlocutory appeals. See §1292(d)(4)(A). But unlike §16, the text of that other provision specifies that, upon an interlocutory appeal, “proceedings shall be … stayed until the appeal has been decided.” §1292(d)(4)(B). This resembles the rule the majority adopts today for §16 appeals. Yet Congress omitted it from §16, while simultaneously imposing it in §1292(d)(4).
Second, Congress expressly mandated a general interlocutory stay in another provision of the Federal Arbitration Act. Section 3 pertains to a circumstance in which the trial court is “satisfied” that an issue should be referred to arbitration. 9 U. S. C. §3. In such a case, the statute expressly provides that the trial court “shall on application of one of the parties stay the trial of the action until such arbitration has been had.” Ibid. (emphasis added). Again, the contrast with §16 is stark. Congress specified a mandatory general stay of trial court proceedings in §3 (when the trial court determines that arbitration is warranted) but not §16(a) (when the court determines that arbitration is unwarranted).
The majority opinion waves away these mandatory-general-stay provisions by jerry-rigging explanations for why Congress mandated those stays expressly without doing so in §16. Ante, at 8–9. But the point remains: Congress focused on stays when crafting the 1988 law and the Federal Arbitration Act. And when it intended to mandate interlocutory stays, it said so expressly. Nothing stopped Congress from doing so in §16—yet it chose not to. This underscores that §16 does not mandate a stay.[1]
- ↑ The majority’s explanation for why Congress mandated a stay in 28
