Introduction

This appeal at the intersection of international judicial assistance and domestic arbitration enforcement asked whether a party can use Section 4 of the Federal Arbitration Act (FAA), 9 U.S.C. § 4, to compel arbitration within a proceeding brought under 28 U.S.C. § 1782. Section 1782 enables litigants in foreign proceedings to obtain discovery from persons found in the United States. Here, financialright claims GmbH (FRH) petitioned in the District of Delaware for § 1782 discovery in aid of German litigation involving mass antitrust claims arising from the European Commission’s 2016 trucks cartel decision. The respondents—Burford German Funding LLC (BGF), Burford Capital LLC (BCL), and German Litigation Solutions LLC (GLS) (collectively, Burford)—sought to divert the discovery fight to arbitration based on an arbitration clause in a Capital Provision Agreement (CPA) with FRH.

Instead of relying on Chapter 2 of the FAA (which implements the New York Convention and includes § 206’s grant of authority to compel arbitration), Burford moved under FAA § 4. The District Court denied the motion, holding that a § 1782 proceeding is not a “civil action” as § 4 requires. In a non-precedential opinion of first impression for the Circuit, the Third Circuit affirmed. Judge Roth authored the opinion, joined by Judge Freeman. Judge Matey dissented, reading “civil action” and “suit” more broadly to encompass § 1782 proceedings.

The decision clarifies that parties cannot use FAA § 4 to compel arbitration directly from the miscellaneous docket of a § 1782 application, because § 1782 proceedings are neither “civil actions” nor the sort of independent “suits” contemplated by § 4. The panel also declined to entertain, for the first time on appeal, Burford’s belated reliance on FAA Chapter 2 (§ 206).

Summary of the Opinion

• Holding: A § 1782 petition is not a “civil action” under 9 U.S.C. § 4. Therefore, a district court lacks authority under § 4 to compel arbitration of disputes arising in a § 1782 proceeding.
• Rationale in brief:
  • Text and context of § 4 require the proceeding to be a “suit” and, outside admiralty, a “civil action.”
  • Even assuming arguendo a § 1782 petition could be a “suit,” it is not a “civil action” as understood in the Federal Rules of Civil Procedure and their historical antecedents (the Field Code), because § 1782 is a special, ancillary proceeding initiated without summons or pleadings and often decided ex parte.
  • The legislative history of the 1954 amendments that introduced “civil action” into § 4 indicates Congress did not intend § 4 to sweep in “special proceedings.”
  • Parallel statutory usage—especially removal under 28 U.S.C. § 1441—confirms that ancillary discovery proceedings are not “civil actions.”
• Rejected arguments:
  • That a court’s general jurisdiction over a pending matter allows it to ignore § 4’s textual requirement of a Title 28 “civil action.”
  • That Badgerow v. Walters and Vaden v. Discover Bank eliminate § 4’s “civil action” precondition whenever a federal case is already on the docket.
  • Belated reliance on FAA Chapter 2 (§ 206) raised for the first time on appeal.
• Scope limits: The panel did not decide whether § 1782 petitions fall under 28 U.S.C. § 1331, nor whether § 4’s limitations are jurisdictional or claims-processing; it focused narrowly on the § 4 “civil action” requirement.
• Disposition: Affirmed the District Court’s order denying Burford’s motion to compel arbitration under § 4 and to stay proceedings under § 3.

Detailed Analysis

A. Precedents and Authorities Shaping the Decision

The court’s reasoning draws on several doctrinal threads: historical usage of “suit” and “civil action,” the structure and purpose of § 1782, the 1954 amendments to § 4 of the FAA, and analogies to other federal statutes where “civil action” is a term of art tethered to the Federal Rules of Civil Procedure.

• Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004): Emphasizes that § 1782 grants discretionary authority to district courts; parties have no right to discovery. This discretion undermines the idea that a § 1782 applicant is vindicating an affirmative right typical of a “suit.”
• ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022): Identifies comity as § 1782’s animating purpose. That orientation—assisting foreign tribunals—reinforces § 1782’s ancillary, non-merits, and non-rights-vindicating nature.
• Vaden v. Discover Bank, 556 U.S. 49 (2009), and Badgerow v. Walters, 596 U.S. 1 (2022): Explain the “look-through” mechanism and the FAA’s independent-jurisdictional-basis requirement. The Third Circuit reads these cases to confirm that while a court must have subject matter jurisdiction apart from the FAA, nothing in Vaden/Badgerow dissolves § 4’s separate textual prerequisites—like the requirement of a “civil action.”
• Removal jurisprudence under 28 U.S.C. § 1441: A strong body of decisions holds that ancillary subpoena or discovery proceedings are not “civil actions” and thus not removable. The court relies on decisions like Teamsters Local 404 Health Services & Insurance Plan v. King Pharmaceuticals, Inc., and others, noting the close kinship between § 1441’s and § 4’s textual histories and purposes.
• Eleventh Amendment cases on subpoenas: Multiple circuits have treated subpoena proceedings as not “suits” for sovereign-immunity purposes (e.g., Ricco Jonas; Barnes; Missouri DNR; Vratil). Though not controlling on the FAA’s meaning, these cases reflect longstanding reluctance to classify bare discovery mechanisms as full-blown “suits.”
• Historical materials: The Field Code’s merger of law and equity and the FRCP’s Rule 3 shaped the technical meaning of “civil action” by the mid-20th century: an “ordinary proceeding” initiated by summons and complaint and culminating in a judgment. Legislative reports from 1954 indicate Congress substituted “in a civil action” for “at law, in equity” to align § 4 with that modern term of art—and to exclude “special proceedings.”

B. The Court’s Legal Reasoning

1. The statutory text of § 4 requires both a “suit” and (outside admiralty) a “civil action.” The panel refrains from a definitive ruling on whether a § 1782 petition is a “suit,” observing that even if it were, § 1782 petitions still fail the separate “civil action” requirement.
2. “Civil action” has a technical meaning anchored in the Federal Rules and their historical ancestors. By 1954, when Congress adopted the “civil action” phrasing in § 4, that term ordinarily described a proceeding initiated by summons and complaint, with pleadings and a judgment—a paradigm that does not fit § 1782’s streamlined, often ex parte, ancillary procedure.
3. Section 1782’s character confirms the mismatch:
   • Ancillary: It is intrinsically tied to a different, primary dispute in a foreign tribunal, rather than being a freestanding merits case.
   • Discretionary: Courts are not required to grant relief; applicants have no entitlement to discovery.
   • Procedural form: § 1782 petitions begin without the hallmarks of a Rule 3 civil action—no summons and complaint, often resolved ex parte, and no final judgment on rights.
4. Parallel usage in the U.S. Code: Courts routinely interpret “civil action” in other statutes through the lens of the FRCP. The court highlights removal (§ 1441) and other contexts (EAJA; FTCA; Vaccine Act) where ancillary or special proceedings are not “civil actions.”
5. Legislative history: Senate and House Reports in 1954 specify that “civil action” in § 4 was chosen to match Rule 2’s single-form-of-action framework for “civil matters other than admiralty and special proceedings.” That language strongly implies Congress did not intend § 4 to reach “special proceedings” like § 1782.
6. Badgerow and Vaden do not excuse § 4’s text. Those cases speak to when courts may “look through” to find subject matter jurisdiction for FAA petitions; they do not abrogate § 4’s independent requirement that the proceeding be a Title 28 “civil action.”
7. Alternative route via FAA Chapter 2 (§ 206): The panel notes that § 206 “would likely have authorized” an order compelling arbitration, but Burford declined to invoke Chapter 2 below and instead pivoted to it on appeal. That new statutory basis was deemed forfeited and not entertained.

C. The Dissent’s Counterpoint

Judge Matey would adopt the ordinary meaning of “civil action” and treat “action” and “suit” as synonymous by the mid-20th century, emphasizing dictionary definitions and common-law usage. On that broader reading, § 1782—which authorizes orders enforceable by contempt—qualifies as a civil proceeding seeking redress of private rights. He would therefore find § 4 available and remand for further consideration of the motion to compel arbitration.

The majority responds implicitly that the modern, technical usage embedded in the FRCP and recognized by Congress in 1954 governs the FAA’s § 4 phrase “civil action,” and that special, ancillary proceedings like § 1782 simply do not fit that term of art.

D. Practical Impact and Forward-Looking Consequences

• Immediate procedural consequence: In the Third Circuit, parties cannot short-circuit or relocate a § 1782 discovery fight to arbitration by filing a § 4 motion within the § 1782 docket. A § 1782 proceeding is not a “civil action” under § 4.
• Strategic implications for cross-border disputes:
  • If the arbitration agreement falls under the New York Convention, counsel should consider invoking FAA Chapter 2 (§ 206) in the first instance when seeking to compel arbitration. Waiting to raise Chapter 2 on appeal risks forfeiture.
  • Alternatively, file a separate, standalone civil action to compel arbitration under § 4 with an independent jurisdictional basis (e.g., diversity), rather than trying to leverage the § 1782 miscellaneous docket.
  • Do not assume that merely having any federal matter on the docket authorizes grant of FAA relief—§ 4’s textual limits still apply.
• Ripple effects for other “special proceedings”:
  • Ancillary subpoena enforcement, letters rogatory, and other miscellaneous docket matters likewise may not constitute “civil actions” under § 4 in this Circuit’s view.
  • Removal under § 1441 of state-court subpoena disputes, and Eleventh Amendment cases treating subpoenas as something other than “suits,” find fresh resonance here.
• Scope and limits:
  • The opinion is non-precedential; it may be persuasive but is not binding within the Third Circuit.
  • The panel expressly does not define “civil action” across the U.S. Code; it confines its holding to the § 4 context and the § 1782 posture.
  • Open questions remain, including whether § 1782 proceedings fall within § 1331 and whether § 4’s limitation is jurisdictional or a claims-processing rule.
• For funders and aggregators in international litigation: This decision emphasizes procedural precision. When disputes over discovery and arbitrability arise in the wake of § 1782 petitions, selecting the correct statutory vehicle (Chapter 2 or a separate civil action) is outcome determinative.

Complex Concepts Simplified

• What is § 1782? A U.S. statute allowing a person involved in a foreign or international proceeding to seek U.S.-style discovery from someone “found” in a U.S. district. It is discretionary, often ex parte, and aimed at assisting foreign tribunals (comity).
• “Special proceeding” vs. “civil action”: A “civil action” (per the FRCP) starts with a complaint and summons, proceeds through pleadings and discovery, and ends with a judgment. A “special proceeding” is narrower and does not follow that full civil action architecture. The Third Circuit treats § 1782 as the latter.
• FAA § 4: Allows a district court to compel arbitration when, “save for” the arbitration agreement, the court would have jurisdiction over a Title 28 “civil action” (or admiralty) concerning the parties’ controversy. Because a § 1782 petition is not a “civil action,” § 4 is unavailable to compel arbitration in that docket.
• FAA Chapter 2 (§ 206): Implements the New York Convention and authorizes courts to compel arbitration where applicable. The panel suggests § 206 likely could have supported Burford’s request had it been timely invoked.
• “Look-through” jurisdiction: From Vaden and Badgerow. Courts generally need an independent jurisdictional basis to act under the FAA. For § 4 specifically, courts may “look through” the petition to the underlying controversy to find federal question jurisdiction. But “look-through” does not erase § 4’s textual requirements, such as the need for a “civil action.”
• Ancillary proceedings: Proceedings that exist solely to support another, primary case (often pending elsewhere). § 1782 is ancillary to a foreign case; it does not adjudicate substantive rights, but merely facilitates discovery.

Conclusion

The Third Circuit held, as a matter of first impression in the Circuit, that a § 1782 proceeding is not a “civil action” for purposes of FAA § 4. That conclusion draws on the technical meaning of “civil action” embedded in the Federal Rules and reflected in related statutes and legislative history, as well as the ancillary and discretionary character of § 1782. The court declined to permit litigants to compel arbitration from the § 1782 docket and refused to consider a new Chapter 2 theory raised only on appeal.

The practical message is straightforward: if a party wants to enforce an arbitration clause against someone seeking (or resisting) § 1782 discovery, it must select the proper procedural vehicle. That may mean invoking FAA Chapter 2 when the New York Convention applies, or filing a separate civil action to compel arbitration with a proper jurisdictional footing, rather than attempting to proceed under § 4 within the § 1782 application itself. While the opinion is non-precedential, it offers a careful roadmap that will likely influence how courts in the Third Circuit—and perhaps elsewhere—treat attempts to merge ancillary international discovery with domestic arbitration enforcement.

Case Background Snapshot

• Parties: FRH (appellee § 1782 applicant) vs. Burford entities (appellants seeking to compel arbitration: BGF, BCL, GLS).
• Underlying foreign matters: German antitrust mass claims against truck manufacturers after the 2016 European Commission decision.
• Contractual backdrop: A 2017 Capital Provision Agreement between FRH and BGF with an expansive arbitration clause; a separate representation agreement with law firm Hausfeld, which lacked an arbitration clause and required German court litigation.
• Trigger: FRH’s concerns in 2021 about alleged undisclosed interests linking Hausfeld and GLS led FRH to sue Hausfeld in Germany and seek § 1782 discovery from Burford in Delaware.
• Procedural posture: District Court denied Burford’s § 4 motion to compel arbitration and stay; granted § 1782 discovery (not at issue on appeal). The Third Circuit affirmed the denial of the § 4 motion; dissent would have allowed § 4 and remanded.