The panel granted a petition for a writ of mandamus requiring the district court to vacate its order compelling arbitration of Rebecca Orr’s individual claims against her former employer, the United Parcel Service, Inc. (“UPS”).

Orr brought several claims against UPS on behalf of three putative classes as well as individual claims. The district court ordered Orr to arbitrate her individual claims consistent with the terms of the binding arbitration agreement, but stayed the litigation of the class claims pending resolution of arbitration. In ruling on UPS’s motion to compel arbitration, the district court refused to determine whether the Federal Arbitration Act (“FAA”) or the California Arbitration Act was applicable to Orr’s agreement.

The panel weighed the factors in Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977), in determining whether to grant a writ of mandamus.

Regarding the third Bauman factor—whether the district court committed a clear error of law—the panel held that the district court committed clear error by refusing to determine the basis for its authority to compel arbitration and improperly delegating the contractual question as to the FAA’s applicability to the arbitrator. New Prime Inc. v. Oliveira held that the district court, not an arbitrator, must decide whether the contracts of employment exclusion in 9 U.S.C. § 1 applies to an agreement before ordering arbitration. 586 U.S. 105, 111 (2019). By compelling arbitration of Orr’s individual claims without deciding whether the FAA or state law applies, the district court improperly delegated the FAA § 1 exclusion question to the arbitrator.

Regarding the first Bauman factor—whether the party seeking the writ lacks an adequate alternative remedy—the panel held that Orr met this factor because no contemporaneous, ordinary appeal of the district court’s order is available.

Regarding the second Bauman factor—whether the party seeking the writ will be prejudiced in a way not correctable on appeal—the panel held that Orr met this factor for two cumulative reasons: (1) uncorrectable prejudice stemmed from the district court’s refusal to specify the source of its authority for its order compelling arbitration; and (2) because the outcome in arbitration could depend on whether the FAA or state arbitration law applied, Orr faced prejudice uncorrectable on appeal if she proceeded to arbitration without the district court’s determination on that issue.

Because Orr made a sufficient showing as to the first three Bauman factors, including the critical factor of clear legal error, the panel granted the petition for a writ of mandamus and directed the district court to determine the appropriate statutory basis for its authority to compel arbitration.

Concurring, Judge Miller joined the court’s opinion in full because it correctly applied this Court’s precedents permitting the use of writs of mandamus to review orders compelling arbitration. He wrote separately to express his view that those cases improperly disregarded Congress’s specific limitations on interlocutory review of orders involving arbitration.

https://cdn.ca9.uscourts.gov/datastore/opinions/2026/06/09/25-2330.pdf