Jackson, J., dissenting
Given all this, it is no surprise that Congress’s enactments barely figure into the majority opinion. The mandatory-general-stay rule is so untethered from §16 that the statutory text has no role in the Court’s reasoning.
And when Congress’s work finally does take the stage near the end of the Court’s analysis, it plays a minor part. See ante, at 6–7. The Court notes that other statutes expressly provide that appeals do not automatically stay district court proceedings. Ante, at 7, and n. 6. From this, the Court tries to draw an across-the-board inference that, unless Congress expressly disavows the majority’s mandatory-general-stay rule, that rule applies.
The Court’s inference fails. The statutes that the major-
U. S. C. §1292(d)(4) also makes no sense. According to the majority, Congress usually remains silent when it intends to mandate a stay. Ante, at 6–7, 8–9. Congress expressly imposed a mandatory stay in §1292(d)(4), the majority says, only because a pre-existing provision, §1292(d)(3), would otherwise have made stays in §1292(d)(4) appeals discretionary. Ante, at 8–9.
But that last point holds no water. Paragraph (3) has no bearing on paragraph (4), because these two provisions govern different kinds of appeals.
Specifically, paragraph (3) governs certain appeals by permission, while paragraph (4) governs a separate set of appeals as of right. Paragraph (3) addresses events unique to permissive appeals: “Neither the application for nor the granting of an appeal” stays trial court proceedings. §1292(d)(3) (emphasis added). Paragraph (3) thus corresponds to paragraphs (1) and (2), which authorize permissive appeals “if application is made” and granted. §§1292(d)(1)–(2). Meanwhile, paragraph (4) separately authorizes certain as-of-right appeals, §1292(d)(4)(A), and it imposes mandatory stays in such appeals, §1292(d)(4)(B). In an appeal as of right under paragraph (4), paragraph (3) never kicks in, because there is no “application for” or “granting of” an appeal, §1292(d)(3).
Thus, the majority’s story—that Congress needed express stay language to avoid overlap with paragraph (3)—turns on a red herring. There is no such overlap. Instead, only the more straightforward explanation remains: Congress imposed a mandatory general stay in §1292(d)(4)—but not 9 U. S. C. §16—because it intended such a stay under the former but not the latter.
