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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0008p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

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PREFERRED CARE OF DELAWARE, INC.; PREFERRED 

CARE PARTNERS MANAGEMENT GROUP, L.P.;

KENTUCKY PARTNERS MANAGEMENT, LLC; CADIZ 

HEALTH FACILITIES, L.P., 

Plaintiffs-Appellees, 

v. 

ESTATE OF MARILYN HOPKINS, by and through 

Stephen Edward Hopkins, Executor, 

Defendant-Appellant. 

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No. 16-6180 

Appeal from the United States District Court 

for the Western District of Kentucky at Paducah 

No. 5:15-cv-00191—Gregory N. Stivers, District Judge. 

Decided and Filed: January 11, 2017 

Before: BATCHELDER, SUTTON, and KETHLEDGE, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Robert E. Salyer, Brian M. Jasper, WILKES & MCHUGH, P.A., Lexington, 

Kentucky, for Appellant. Donald L. Miller, II, Kristin M. Lomond, QUINTAIROS, PRIETO, 

WOOD & BOYER, P.A., Louisville, Kentucky, for Appellees. 

_________________ 

OPINION 

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 SUTTON, Circuit Judge. After Marilyn Hopkins died in a nursing home, her estate sued 

the owners and operators of the nursing home (together, “Preferred Care”) in Kentucky state 

court, raising several claims under Kentucky law. Preferred Care asked a federal court to 

>
No. 16-6180 Preferred Care of Del., et al. v. Estate of Marilyn Hopkins Page 2 

enforce the arbitration provision in Hopkins’ admissions agreement. The district court obliged—

compelling arbitration, enjoining Hopkins from proceeding in the state court action, and staying 

the federal case until arbitration concluded. Hopkins appealed the order. Preferred Care moved 

to dismiss for lack of appellate jurisdiction. Because the Federal Arbitration Act forbids us from 

hearing these challenges, we must dismiss the appeal. 

Consistent with the Federal Arbitration Act’s policy of favoring agreements to arbitrate 

disputes, its appeal provisions prioritize review of district court orders that interfere with 

arbitration and limit review of orders that compel arbitration. The Act permits litigants to appeal 

from: 

(1) an order-- 

(A) refusing a stay of any action under section 3 of this title, 

(B) denying a petition under section 4 of this title to order arbitration to 

proceed, 

(C) denying an application under section 206 of this title to compel 

arbitration, 

(D) confirming or denying confirmation of an award or partial award, or 

(E) modifying, correcting, or vacating an award; 

(2) an interlocutory order granting, continuing, or modifying an injunction against 

an arbitration that is subject to this title; or 

(3) a final decision with respect to an arbitration that is subject to this title. 

9 U.S.C. § 16(a). 

The Act forbids litigants from appealing in other circumstances: 

(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not 

be taken from an interlocutory order-- 

(1) granting a stay of any action under section 3 of this title; 

(2) directing arbitration to proceed under section 4 of this title;

 (3) compelling arbitration under section 206 of this title; or 

(4) refusing to enjoin an arbitration that is subject to this title. 

Id. § 16(b). The provisions that § 16 refers to halt federal lawsuits covered by an arbitration 

agreement (section 3), require federal courts to honor arbitration agreements (section 4), and give 

federal courts authority to direct where an arbitration occurs in international disputes (section 

206). See 9 U.S.C. §§ 3, 4, 206. 
No. 16-6180 Preferred Care of Del., et al. v. Estate of Marilyn Hopkins Page 3 

In contrast to the general rules for appealing decisions from the district court, see, e.g., 

28 U.S.C. §§ 1291, 1292, the Act precisely regulates the kinds of arbitration-related decisions a 

litigant may appeal. It permits review of orders that interfere with arbitration, such as those 

“refusing” stays of federal proceedings in favor of arbitration and those “denying” petitions to 

enforce arbitration agreements, as well as interlocutory orders “granting, continuing, or 

modifying an injunction against an arbitration.” 9 U.S.C. § 16(a). But it prohibits appeals from 

other interlocutory orders that favor arbitration, such as those “granting” stays in favor of 

arbitration, “directing” or “compelling” arbitration, or “refusing” to enjoin an arbitration. Id. 

§ 16(b). 

Through it all, the Act does not suspend the final-judgment rule. A litigant may appeal 

from a “final decision” with respect to an arbitration. Id. § 16(a)(3). As to this last point, a party 

may appeal an order compelling arbitration when the district court dismisses the underlying 

action, because the dismissal constitutes a “final decision” within the meaning of the statute. 

Green Tree Fin. Corp.–Ala. v. Randolph, 531 U.S. 79, 86–87 (2000). By contrast, a party may 

not appeal an order compelling arbitration if the court stays the underlying suit, which makes 

everything interlocutory and non-appealable under § 16. Id. at 87 n.2; ATAC Corp. v. Arthur 

Treacher’s, Inc., 280 F.3d 1091, 1097–99 (6th Cir. 2002). 

What did the district court do here? Three things: It compelled the parties to arbitrate 

their claims; it stayed the federal case until the arbitration concluded; and it enjoined Hopkins’ 

estate from proceeding against Preferred Care in the state court action. 

Congress has foreclosed jurisdiction over each action. The first two orders are easy. 

Section 16(b)(2) forbids review of the first order by name, removing jurisdiction over orders 

“directing arbitration.” And § 16(b)(1) does the same as to the second order, removing 

jurisdiction over orders “granting a stay” of the federal court action until the arbitration ended. 

What of the state-court injunction? Section 16(b)(2) bars review of that as well. It not 

only bars appeals of orders “directing arbitration,” but it usually bars what comes with them—

orders enjoining a lawsuit covered by the arbitration clause. Because § 16(b)(2) prohibits 

appeals of interlocutory orders “directing arbitration to proceed under section 4” of the Act, and 
No. 16-6180 Preferred Care of Del., et al. v. Estate of Marilyn Hopkins Page 4 

because section 4 says that courts “shall” direct arbitration to proceed “in accordance with the 

terms” of the arbitration agreement, an order to arbitrate typically will prohibit court litigation 

from continuing. Few arbitration clauses permit litigation to continue during the arbitration with 

respect to covered claims. Else, what would be the point of the arbitration clause? And this 

arbitration contract, no surprise, does not permit litigation to continue during the arbitration. By 

halting Hopkins’ state-court litigation, the district court simply exercised its power under § 4: 

Directing arbitration to proceed according to the terms of the arbitration agreement. That means 

the injunction falls within the bar on appeals in § 16(b). See Moglia v. Pac. Emp’rs Ins. Co., 

547 F.3d 835, 838 (7th Cir. 2008) (“§ 16(b) would forbid appeal” from “an injunction”); see also 

16 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3923 (3d ed. 

2016) (“[M]ost orders of federal courts respecting arbitration will fall within the reach of § 16”). 

This approach aligns with Congress’s “liberal federal policy favoring arbitration,” AT&T 

Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quotation omitted), and its efforts to 

“move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily 

as possible,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 (1983). 

That is not to say that an arbitration agreement might not permit relief in court either for 

matters not covered by the arbitration agreement or for interim forms of judicial relief 

contemplated by the arbitration agreement. See, e.g., Manion v. Nagin, 255 F.3d 535, 538 (8th 

Cir. 2001). Arbitration after all is a matter of contract. But Hopkins makes no argument that this 

is such an agreement. And a review of the arbitration agreement confirms as much. 

What of § 1292(a), which permits appeals from injunction orders? May litigants use this 

provision to create an exception to the bar on appeals of orders directing arbitration or enjoining 

state or federal court litigation during the arbitration? No. When two statutes conflict, the 

specific governs the general. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 

(1992). Section 1292(a) generally provides for immediate appeals of injunctions, while § 16 

specifically forecloses appeals of pro-arbitration interlocutory orders. We know that § 16 is the 

more specific provision because it directly addresses the issue—arbitration-related appeals—and 

because its exception for § 1292(b) shows that the statute reflects (and limits) the pre-existing 

rules for appeals. See 9 U.S.C. § 16(b). That means “[o]ther possible sources of appellate 
No. 16-6180 Preferred Care of Del., et al. v. Estate of Marilyn Hopkins Page 5 

jurisdiction, including 28 U.S.C. § 158(d) (final decisions in bankruptcy), § 1291 (final decisions 

in civil suits), and § 1292(a) (injunctions), are superseded for orders to arbitrate.” Moglia, 547 

F.3d at 837 (emphasis added); see ConArt, Inc. v. Hellmuth, Obata + Kassabaum, Inc., 504 F.3d 

1208, 1210 (11th Cir. 2007); 15B Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 3914.17 (2d ed. 2016) (“These rules [in §16] should supersede any attempt to rely 

on the general interlocutory injunction appeal provisions of § 1292(a)(1).”); 16 id. § 3923 (3d ed. 

2016) (“The explicit provisions of § 16 should prevail in these cases, superseding any use that 

might be made of § 1292(a)(1).”). Notably, we have dismissed a case just like this one for just 

this reason. Preferred Care of Del., Inc. v. Konicov, No. 16-5574, at 2 (6th Cir. Oct. 14, 2016) 

(“The more specific appellate-review provisions of the FAA control over § 1292(a)(1), which is 

a general statute governing appellate jurisdiction.”). 

Other provisions in § 16 reinforce the conclusion that “[a] pro-arbitration decision, 

coupled with a stay (rather than a dismissal) of the suit, is not appealable” even when it includes 

an injunction. Moglia, 547 F.3d at 837. Section 16(a)(2) permits an appeal from an 

“interlocutory order granting, continuing, or modifying an injunction against an arbitration.” 

(Emphasis added). That shows that the existence of an injunction does not give us appellate 

jurisdiction. Otherwise, Congress would not have needed to authorize appeals from interlocutory 

injunction orders against arbitration. We would have had jurisdiction already under 28 U.S.C. 

§ 1292(a). In addition, § 16(b) incorporates an exception for 28 U.S.C. § 1292(b) (which gives 

us jurisdiction when the district court certifies appealable issues) but not § 1292(a) (which 

generally provides for appeals from injunctions). That shows that § 16(b) was drafted with other 

appellate jurisdictional provisions in mind, and that Congress declined to create a categorical 

exception to § 16(b) for appeals from injunctions regarding arbitration. When a district court 

directs arbitration and stays the proceedings, “[t]he only exception to § 16(b) is an appeal by 

permission under § 1292(b).” Moglia, 547 F.3d at 838; see Johnson v. Consumerinfo.com, Inc., 

745 F.3d 1019, 1023 (9th Cir. 2014). 

This approach also avoids undermining the efficiencies, speed, and lowered costs of 

arbitration. If our § 1292(a) appellate jurisdiction over injunctions remained unaffected by § 16, 

even the most clumsy litigants could delay an arbitration and drive up costs with procedural 
No. 16-6180 Preferred Care of Del., et al. v. Estate of Marilyn Hopkins Page 6 

fencing. All they would have to do is ask for an injunction—any injunction—other than one 

enjoining the arbitration itself. The district court would have to rule on it. And any denial would 

invoke our jurisdiction by the terms of § 1292(a). 28 U.S.C. § 1292(a) (granting appellate 

jurisdiction over interlocutory orders “granting, continuing, modifying, refusing or dissolving 

injunctions”). Congress deserves more credit than to have created such a two-faced regime—

carefully restricting appeals from arbitration decisions in one direction, then indulging all 

manner of appeals in the other. 

When all is said and done, there is no good reason to distinguish between orders like this 

one, which “enjoins” a party from pursuing an arbitrable claim outside of arbitration, and orders 

that merely “compel” or “direct” the parties to arbitrate. An order “compelling” parties to do 

something, when it resolves the merits of the dispute, is an injunction—an order of specific 

performance on the merits. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 

271, 279 (1988); Moglia, 547 F.3d at 838. 

The order at issue does exactly, and only, what § 16 contemplates. The district court 

found that the wrongful death claim could not be subject to the arbitration clause because that 

right of action belonged to Hopkins’ surviving family rather than Hopkins herself under 

Kentucky law. (No one appeals that ruling.) All of the other claims, however, were subject to 

the arbitration clause. Accordingly, the district court ordered that “Defendant [Hopkins] is 

ENJOINED from proceeding against Plaintiffs in the State Court Action, except for the wrongful 

death claims. The parties to this action are COMPELLED to arbitrate all claims (except the 

wrongful death claims), which are the subject of the State Court Action.” R. 15 at 13. And 

finally the court ordered the case “STAYED until the conclusion of the ordered arbitration.” Id. 

Those acts are each aimed at enforcing the commands of the Federal Arbitration Act, and going 

no further. In view of § 16’s prohibition on such appeals, we may not review them. 

Hopkins counters that the district court’s order is appealable because it is “structurally a 

final decision,” leaving “nothing more for the court to do but execute the judgment.” 

Appellant’s Resp. Br. 4 (quoting Green Tree, 531 U.S. at 86). But form matters in this area, as 

Green Tree itself reminds us. Green Tree held that, if a district court orders arbitration and 

dismisses the case before it, the order is an appealable “final decision with respect to an 
No. 16-6180 Preferred Care of Del., et al. v. Estate of Marilyn Hopkins Page 7 

arbitration” under § 16(a)(3). 531 U.S. at 86–87. But if the district court enters a stay instead of 

a dismissal, “that order [is] not . . . appealable” under § 16(b)(1). Id. at 87 n.2; see ATAC Corp., 

280 F.3d at 1097–99. The broader final-judgment rule confirms that form matters. Final 

judgments are appealable, 28 U.S.C. § 1291; interlocutory orders generally are not. Even final 

orders are not typically considered appealable until a separate final judgment—the right form—is 

entered. See Fed. R. Civ. P. 58; Fed. R. App. P. 4(a); see also Kraus v. Taylor, 715 F.3d 589, 

593 (6th Cir. 2013) 

Nor does Great Earth Companies, Inc. v. Simons, 288 F.3d 878 (6th Cir. 2002), aid 

Hopkins. That’s because the district court in that case entered a final judgment rather than 

staying the action pending arbitration. Great Earth Cos., Inc. v. Simons, No. 00-cv-72720-DT 

(E.D. Mich. July 31, 2000); see 9 U.S.C. § 16(a)(3). Under the “well-established meaning” of a 

“final decision,” the entry of judgment was appealable. Green Tree, 531 U.S. at 86; Great Earth,

288 F.3d at 885. Today’s district court proceedings have no final judgment. The district court 

has yet to enforce or decline to enforce the arbitration award. And the entry of a stay order 

“suggests that the district court perceives that it might have more to do than execute the 

judgment once arbitration has been completed.” ATAC Corp., 280 F.3d at 1099. This order is 

interlocutory and not appealable. 

One last issue. Hopkins maintains that, if we have power to review the injunction, we 

should exercise pendent jurisdiction over the other issues raised on appeal on the ground that 

they are “inextricably intertwined” with the injunction claim. See AmSouth Bank v. Dale, 

386 F.3d 763, 774 (6th Cir. 2004). The “if” is a fatal qualifier. Because we lack jurisdiction 

over the injunction, we lack jurisdiction over anything potentially pendent to it. 

 For these reasons, we dismiss the appeal.