In an August 14, 2013 opinion, Grosvenor v. Qwest Corp., the US Court of Appeals for the Tenth Circuit dismissed an appeal by Qwest to compel arbitration under the FAA for lack of appellate jurisdiction. The court held that to invoke its jurisdiction under the FAA, the filings underlying the order being appealed must have sought to compel arbitration or stay litigation explicitly, or it must be clear that the movant is seeking such relief.

In December 2009, the plaintiff filed a putative class action against Qwest Corp. in the US District Court for the District of Colorado alleging that Qwest violated its subscriber agreement by raising the price of internet service after registration. Qwest responded to the complaint with a motion to compel arbitration and to stay proceedings, which the district court denied. After discovery, the parties moved for partial summary judgment on whether the parties entered into a valid arbitration agreement. The district court granted the motions for partial summary judgment. The district court found that an agreement existed, but that it was illusory and unenforceable.

On appeal, Qwest argued that the Tenth Circuit had jurisdiction to review the district court's summary judgment order under the FAA because it constituted an appealable order denying a petition to compel arbitration. The court held that it lacked jurisdiction to hear the appeal under the FAA because the summary judgment order did not constitute an order denying a motion to compel arbitration because Qwest failed to either:

The FAA provides that an appeal may be taken from an order denying an application to compel arbitration (9 U.S.C. § 16(a)(1)(C)). Although Qwest had previously filed a motion to compel arbitration in the case, this order was not at issue in this appeal. Instead, Qwest was appealing from an order granting its motion for summary judgment holding that a valid agreement existed between the parties. In its motion or response to the plaintiff's motion for summary judgment, Qwest did not request the court to compel arbitration or stay the litigation. The Tenth Circuit also held that Qwest had not made an unmistakably clear request to compel in its motion for summary judgment that would have granted the court appellate jurisdiction over the district court's summary judgment order.

Practitioners are reminded that the types of orders that may be appealed under the FAA are limited, and when seeking to appeal an order under the FAA regarding a motion to compel arbitration, it must be clear in the filings underlying the order being appealed that they are moving to compel arbitration or stay litigation explicitly under the FAA.