Breyer, J., dissenting
interlocutory order… directing arbitration to proceed under section 4 of this title”).
Section 3 of the FAA provides another good example. Where a suit contains several claims, and the district court has determined that the parties agreed to arbitrate only a subset of those claims, §3 of the FAA provides that the district court must stay the litigation at the request of either party. See §3 (providing that a court, when referring claims for arbitration, “shall on application of one of the parties stay” the case “until such arbitration has been had”). The stay relieves the parties of the burden and distraction of continuing to litigate any remaining claims while the arbitration is ongoing. And true to the FAA’s proarbitration appellate scheme, §16(a) permits immediate appeals of district court orders refusing to enter a stay, while §16(b) generally prohibits immediate appeals of district court orders granting a stay. Compare §16(a)(1)(A) (“An appeal may be taken from” an order “refusing a stay of any action under section 3 of this title”) with §16(b)(1) (“[A]n appeal may not be taken from an interlocutory order… granting a stay of any action under section 3 of this title”).
I could go on. Section 16(a) of the FAA permits immediate appeal of an interlocutory order granting an injunction against arbitration, while §16(b) generally prohibits immediate appeal of an order refusing to enjoin an arbitration. Compare §16(a)(2) with §16(b)(4). Section 16(a) of the FAA permits immediate appeal of an order denying an application to compel arbitration pursuant to §206, while §16(b) generally prohibits immediate appeal of an order compelling arbitration pursuant to §206. Compare §16(a)(1)(C) with §16(b)(3). Et cetera.
The point, however, is that the appellate scheme of the FAA reflects Congress’ policy decision that, if a district court determines that arbitration of a claim is called for, there should be no appellate interference with the arbitral
