govinfo:USCOURTS-azd-2_21-cv-01554-3

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Caremark LLC, et al., 
 
Petitioners, 
 
v. 
 
Choctaw Nation, et al., 
 
Respondents. 
No. CV-21-01554-PHX-SMB 
 
ORDER 
 
 
 
 Pending before the Court is the Choctaw Nation’s 1 Emergency Motion for Stay 
Pending Appeal and Memorandum of Law in Support (the “Motion”) . (Doc. 40.) 
Caremark2 filed an Opposition to the Motion, (Doc. 44), and the Nation replied, (Doc. 45). 
The parties did not request oral argument, and the Court declines to hold oral argument, 
finding it unnecessary. See LRCiv 7.2(f). The Court has considered the briefing and 
relevant law and will deny the Nation’s Motion. 
I. BACKGROUND 
The Court provided a more detailed background in its March 14, 2022 order (the 
 
1 The “Choctaw Nation” or “the Nation” means the Choctaw Nation; the Choctaw Nation 
Health Services Authority; the Choctaw Health Care, Talihina, OK; the Choctaw Nation 
Health Clinic -Rubin White, Poteau; the Choctaw Nation Health Clinic-McAlester; the 
Choctaw Nation Health Clinic -Idabel; the Choctaw Nation Health Clinic -Stigler; the 
Choctaw Nation Health Clinic -Hugo; the Choctaw Nation Health Clinic -Atoka; the 
Choctaw Nation Health Care Center Durant Pharmacy; and the Choctaw Natio n Online 
Pharmacy Refill Center. 
2 “Caremark” means Caremark, LLC; Caremark PHC, LLC; CaremarkPCS Health, LLC; 
Caremark Rx, LLC; Aetna, Inc.; and Aetna Health, Inc. 

 
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“Order”), (see Doc. 37 at 1–3), and will not reiterate those details here. Rather, the Court 
incorporates the Order’s background by reference. Relevant here, o n April 26, 2021 , the 
Choctaw Nation filed a complaint in the Eastern District of Oklahoma (the “Oklahoma 
Action”) against eleven defendants, including all the named petitioners in this action. See 
Choctaw Nation v. Caremark, LLC , No. 6:21 -CV-128-PRW (E.D. Okla. 2021). The 
Nation’s complaint in that case seeks redress under the Recovery Act, 25 U.S.C. § 1621e, 
which provides tribes with the statutory right to recoup costs of covered medical services 
provided to tribal members from applicable insurance coverage. (Doc. 16 at 3.) 
On September 10, 2021, Caremark filed their Petition with this Court moving the 
Court to compel the Choctaw Nation and related parties to submit their dispute to 
arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), and 
pursuant to agreements entered by the parties. (Doc. 1.) On March 14, 2022, the Court 
granted Caremark’s Petition to Compel Arbitration. (Doc. 37.) 
The Choctaw Nation filed this emergency motion on April 12, 2022, requesting a 
stay of arbitration proceedings pending an appeal of the Order. The Nation argues that a 
stay is necessary in light of the fact that the arbitration process has already commenced. 
(Doc. 40 at 3.) Caremark opposes a stay of arbitration. 
II. LEGAL STANDARD 
When determining whether to issue a stay pending appeal, a court considers the 
following factors: 
 
(1) whether the stay applicant has made a strong showing that he is likely to 
succeed on the merits; (2) whether the applicant will be irreparably injured 
absent a stay; (3) whe ther issuance of the stay will substantially injure the 
other parties interested in the proceeding; and (4) where the public interest 
lies. 
Al Otro Lado v. Wolf, 952 F.3d 999, 1006–07 (9th Cir. 2020) (quoting Nken v. Holder, 556 
U.S. 418, 426 (2009)). The first two factors are most critical, and the last two are reached 
only if an applicant satisfies the first two. Id. at 1007 (citing Nken, 556 U.S. at 434). The 
Ninth Circuit employees a “sliding scale” approach whereby “the required degree of 

 
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irreparable harm increases as the probability of success decreases.” Sanchez v. Att’y Gen. 
of Arizona , No. CV -17-00224-TUC-RM, 2021 WL 2105610, at *2 (D. Ariz. Mary 25, 
2021) (quoting Golden Gate Rest. Ass’n v. City and Cty. of San Francisco, 512 F.3d 1112, 
1115 (9th Cir. 2008)). 
III. DISCUSSION 
The Choctaw Nation argues for a stay using the same failed arguments that it used 
to oppose Caremark’s Petition to Compel Arbitration. As a result, the Nation fails to show 
that it is likely to succeed on the merits. Furthermore, the Nation fails to show that it would 
be irreparably injured absent a stay. Therefore, the Court will deny the Nation’s Motion. 
A. Likelihood of Success on the Merits 
The Nation is unlikely to succeed on the merits of its appeal. “An applicant for a 
stay ‘need not demonstrate that it is more likely than not they will win on the merits, ’ but 
rather must show ‘a reasonable probability ’ or ‘fair prospect ’ of success. ” FTC v. 
Qualcomm, 935 F.3d 752, 755 (9 th Cir. 2019) (quoting Leiva-Perez v. Holder, 640 F.3d 
962, 966–67 (9th Cir. 2011) ). In arguing for its likelihood of success on the merits, the 
Nation advances no new arguments but, instead, reiterates the arguments it made in 
opposition to Caremark’s Petition to Compel Arbitration. The Court continues to find the 
Nation’s arguments unpersuasive for the same reasons it explained in its order compelling 
arbitration. (See generally Doc. 37.) After review of the parties’ briefing and the Court’s 
order, the Court stands by its decision. Therefore, the Court finds that the Nation’s appeal 
does not have a likelihood of success on the merits , nor has it shown a reasonable 
probability or a fair prospect of success. 
B. Potential Injury to The Choctaw Nation 
The Nation argues that it will be irreparabl y injured without a stay because it will 
be forced to submit to an arbitration to which it did not agree and because it will result in 
the loss of sovereign immunity. (Doc. 40 at 7.) Caremark argues that the Nation will not 
be irreparably injured because the Court already ruled that the Nation waived its sovereign 
immunity and because the Court can simply refuse to enforce any arbitration award if the 

 
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Court’s order is overturned on appeal. (Doc. 44 at 16 (citing Alascom, Inc. v. ITT N. Elec. 
Co., 727 F.2d 1419, 1422 (9th Cir. 1984))). 
 “An application for a stay pending appeal must show that a stay is necessary to 
avoid likely irreparable injury to the applicant while the appeal is pending.” Al Otro Lado, 
952 F.3d at 1007 (citing Nken, 556 U.S. at 434). “The minimum threshold showing for a 
stay pending appeal requires that irreparable injury is likely to occur during the period 
before the appeal is likely to be decided.” Id. (citing Leiva-Perez, 640 F.3d at 968). “Thus, 
under the sliding scale approach, a stay applicant’s ‘burden with regard to irreparable harm 
is higher than it is on the likelihood of success prong, as she must show that an irreparable 
injury is the more probable or likely outcome.’” Id. (quoting Leiva-Perez, 640 F.3d at 
968). 
Here, the Nation has not shown that it will suffer irreparable injury absent a stay. In 
the Order, the Court found that the tribe waived its sovereign imm unity by entering into 
the Provider Agreements with Caremark , which incorporated by reference the arbitration 
agreements. (Doc. 37 at 9 –10.) Thus, their argument that they will lose sovereign 
immunity if a stay is not granted is unpersuasive.3 Furthermore, since arbitration awards 
are not self -executing, if an arbitration award is improper, a court “will not enforce the 
award.” Alascom, Inc., 727 F.2d at 1422. “Thus, any harm caused by the denial of a stay 
[of arbitration] will ordinarily be neither serious nor irreparable.” Id.; United Food & Com. 
Workers Union v. Ralphs Grocery Co. , No. CV 19-4265 CBM (EX), 2020 WL 1230639, 
at *5 (C.D. Cal. Feb. 14, 2020) (finding that respondents would suffer no harm if the 
arbitration proceeded while the appeal was pending); Adams v. Postmates, Inc. , No. 19 -
3042 SBA, 2020 WL 1066980, at *5 (N.D. Cal. Mar. 5, 2020) (same). Accordingly, the 
Court finds that the Nation will not suffer irreparable injury if the stay is not granted. 
 
 
3 Moreover, it is unclear whether sovereign immunity even applies where the Nation is the 
plaintiff in the underlying case in Oklahoma. Sovereign immunity is an “immunity from 
suit.” Burlington N. & Santa Fe Ry. Co. v. Vaughn , 509 F.3d 1085, 1090 (9 th Cir. 2007) 
(emphasis original). 

 
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IV. CONCLUSION 
The Court finds that the Choctaw Nation has failed to show a reasonable probability 
or a fair prospect of success on appeal. Furthermore, the Nation has failed to show it will 
be irreparably injured absent a stay.4 Accordingly, 
IT IS ORDERED denying the Nation’s Emergency Motion for Stay. (Doc. 40.) 
 Dated this 29th day of April, 2022. 
 
 
 
4 The Court need not discuss the third and fourth factors of the stay analysis because the 
Nation was failed to show that either of the first two factors favor a stay. See Al Otro Lado, 
952 F.3d at 1007 (citing Nken, 556 U.S. at 434). 

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