Virginia Van Dusen; Joseph Sheer; John Doe 1, individually and on behalf of all other similarly situated persons, Plaintiffs-Appellees,
Swift Transportation Company Incorporated; Interstate Equipment Leasing Incorporated; Chad Killibrew; Jerry Moyes, Defendants-Appellants.
and Submitted November 16, 2015 San Francisco, California
from the United States District Court for the District of
Arizona John W. Sedwick, District Judge, Presiding D.C. No.
J. Holland (argued), Ellen M. Bronchetti, and Paul S. Cowie;
Sheppard, Mullin, Richter & Hampton LLP, San Francisco,
California; for Petitioners-Appellants.
Tuddenham (argued), New York, New York; Dan Getman and Lesley
Tse, Getman & Sweeney PLLC, New Paltz, New York; Jennifer
Kroll and Susan Martin, Martin & Bonnett PLLC, Phoenix,
Arizona; for Plaintiffs-Appellants.
Before: Sidney R. Thomas, Chief Judge and Sandra S. Ikuta and
Andrew D. Hurwitz, Circuit Judges.
/ Appellate Jurisdiction
an interlocutory appeal from a district court's case
management order in a labor law case, the panel held that the
Federal Arbitration Act did not grant it jurisdiction to hear
prior appeal, the court of appeals held that the district
court, rather than an arbitrator, must decide whether the
dispute was exempt from arbitration under 9 U.S.C. § 1,
which provides that the Federal Arbitration Act does not
apply to contracts of workers engaged in foreign or
interstate commerce. On remand, the district court issued a
scheduling order for discovery and a trial on the § 1
panel held that the district court's order was not final
and was not subject to review under the collateral order
doctrine. In addition, the order was not reviewable under 9
U.S.C. § 16(a)(1)(B) on the basis that it had the
practical effect of denying a motion to compel arbitration.
Judge Ikuta agreed with the majority's holding that the
court lacked jurisdiction to hear an interlocutory appeal
from the district court's case management order. She
wrote that for the reasons explained in her dissent to the
panel's other opinion in this matter, Van Dusen v.
Swift, No. 15-70592, - F.3d - (9th Cir. 2016), the
defendant nonetheless was entitled to a writ of mandamus.
THOMAS, Chief Judge:
determine whether the Federal Arbitration Act
("FAA"), 9 U.S.C. § 1 et seq., grants us
jurisdiction to hear an interlocutory appeal from a district
court's case management order. We conclude it does not,