1 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

_________________

P REFERRED C ARE OF D ELAWARE , I NC .; P REFERRED C ARE P ARTNERS M ANAGEMENT G ROUP , L.P.; K ENTUCKY P ARTNERS M ANAGEMENT , LLC; C ADIZ H EALTH F ACILITIES , L.P., Plaintiffs-Appellees ,

v

.

E STATE OF M ARILYN H OPKINS , by and through Stephen Edward Hopkins, Executor, Defendant-Appellant

. ┐ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 16-6180

Appeal from the United St ates District Court for the Western District of Kentucky at Paducah No. 5:15-cv-00191—Gregory N. S tivers, 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. Lom ond, QUINTAIROS, PRIETO, WOOD & BOYER, P.A., Louisvil le, Kentucky, for Appellees.

_________________ OPINION

_________________ SUTTON, Circuit Judge. Afte r Marilyn Hopkins died in a nursing home, her estate sued the owners and operators of th e 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 pr ovision in Hopkins ’ admissions agreement. Th e district court obliged— compelling arbitration, enjoining Hopkins from pr oceeding in the state c ourt action, and staying
the federal case until arbitrati on concluded. Hopkins appealed th e 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 agre ements to arbitrate disputes, its appeal provisions prioritize review of district c ourt 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 acti on 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 secti on 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 modify ing 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 a ppealing in other circumstances:
(b) Except as otherwise provided in sect ion 1292(b) of title 28, an appeal may not be taken from an in terlocutory 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 lawsui ts 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 arbi tration 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 app ealing decisions from the district court, see, e.g. , 28 U.S.C. §§ 1291, 1292, the Act precisely regulates the kinds of arbitratio n-related decisions a litigant may appeal. It permits re view 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 or ders “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 “compel ling” 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 wh en the district court dismisses the underlying action, because the dismissal constitutes a “final d ecision” 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 compelli ng arbitration if the court stays the underlying suit, which makes everything interlocut ory 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 comp elled the parties to arbitrate their claims; it stayed the federa l case until the arbi tration concluded; a nd it enjoined Hopkins’ estate from proceeding against Prefe rred Care in the state court action.
Congress has foreclosed jurisd iction 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 “g ranting a stay” of the federal cour t action until the arbitration ended.
What of the state-court injunctio n? Section 16(b)(2) bars review of that as well. It not only bars appeals of orders “dir ecting arbitration,” but it usually bars what comes with them— orders enjoining a lawsuit covered by the arb itration clause. Because § 16(b)(2) prohibits appeals of interlocutory orders “directing arbitration to proceed under section 4” of the Act, andNo. 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 arbitrati on clauses permit litigation to cont inue during the ar bitration with respect to covered claims. Else , what would be the point of th e arbitration clause? And this arbitration contract, no surprise, does not permit litigati on to continue during the arbitration. By halting Hopkins’ state-court litiga tion, 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 ar bitration will fall within the reach of § 16”). This approach aligns with Congress’s “lib eral federal policy fa voring arbitration,” AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 339 (2011) (quotati on 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 agreem ent 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 co ntract. 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 appeal s of orders directing ar bitration or enjoining state or federal court litigation during the arbitration? No. Wh en 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 im mediate appeals of injunctions, while § 16 specifically forecloses a ppeals of pro-arbitration interlocutor y orders. We know that § 16 is the more specific provision because it directly addr esses 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 appellateNo. 16-6180 Preferred Care of Del., et al. v. Estate of Marilyn Hopkins Page 5

jurisdiction, includi ng 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 Al an 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 prev ail 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 a ppellate jurisdiction.”).
Other provisions in § 16 reinforce the conc lusion 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, cont inuing, or modifying an injunction against an arbitration.” (Emphasis added). That shows that the existen ce of an injunction does not give us appellate jurisdiction. Otherwise, Congress would not have needed to author ize appeals from interlocutory injunction orders against arbitration. We would have ha d 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 certifie s appealable issues) bu t 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 th at 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 § 129 2(a) appellate jurisdiction over in junctions remained unaffected by § 16, even the most clumsy litigants could delay an arbitration and drive up costs with proceduralNo. 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 cour t would have to rule on it. And any denial would invoke our jurisdiction by the te rms of § 1292(a). 28 U.S.C. § 1292(a) (granting appellate jurisdiction over interlocutory or ders “granting, continuing, m odifying, refusing or dissolving injunctions”). Congress deserves more credit th an to have created such a two-faced regime— carefully restricting ap peals 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 r eason to distinguish betw een orders like this one, which “enjoins” a party from pursuing an arbitr able claim outside of arbitration, and orders that merely “compel” or “direct” the parties to arbitrate. An order “co mpelling” 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 exac tly, and only, what § 16 contempl ates. The district court found that the wrongful death claim could not be s ubject to the arbitration clause because that right of action belonged to H opkins’ 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 distri ct court ordered that “Defendant [Hopkins] is ENJOINED from proceeding agains t Plaintiffs in the State Cour t Action, except for the wrongful death claims. The parties to this action are COMPELLED to arb itrate all claims (except the wrongful death claims), which ar e the subject of the State Cour t 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 comma nds 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 anNo. 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 ru le confirms that form matters. Final judgments are appealable, 28 U.S.C. § 1291; interloc utory orders generally are not. Even final orders are not typically considered appealable until a separate final j udgment—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 dist rict 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 ar bitration award. And the entry of a stay order “suggests that the district cour t 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 ot her issues raised on appeal on the ground that they are “inextricably intertwine d” 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 ove r anything potentially pendent to it.
For these reasons, we dismiss the appeal.