FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 16, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-16665

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D. C. Docket No. 06-01064-CV-BE-W

CONART, INC., 

a Georgia Corporation, 

Plaintiff-Appellant, 

versus 

HELLMUTH, OBATA + KASSABAUM, INC., 

a Missouri Corporation, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(October 16, 2007)

Before CARNES, BARKETT and HILL, Circuit Judges.

CARNES, Circuit Judge:
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ConArt, Inc., is a company that did the concrete and stone work on the

construction of the Shelby-Hall Interdisciplinary Sciences Building on the

University of Alabama campus under a subcontract to the general contractor for a

project. Hellmuth, Obata & Kassabaum, Inc. was the architectural firm and

supervised construction. As often happens with large construction projects, there

were disputes and those disputes led to litigation. 

ConArt sued Hellmuth in federal district court. Hellmuth had claims against

ConArt that had been assigned to it by another party (the general contractor) in an

earlier settlement of their differences. The contract between ConArt and that other

party, which gave rise to the claims that Hellmuth had been assigned, contained an

arbitration clause. After ConArt sued it, Hellmuth, relying on the arbitration

clause, filed a demand for arbitration of the assigned claims. ConArt’s direct

claims against Hellmuth, which were the basis of its lawsuit, were not subject to an

arbitration agreement. 

ConArt responded to Hellmuth’s arbitration demand by amending its

complaint to include a count seeking a declaratory judgment that the claims

Hellmuth was asserting against it were not arbitrable, and seeking an injunction to

prevent the arbitration proceedings Hellmuth had demanded. ConArt contended

that the claims against it that Hellmuth had been assigned were not covered by the
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arbitration clause, while Hellmuth contended that they were. The arbitration clause

itself provided that the court would decide whether claims were arbitrable. The

district court did so, concluding that the assigned claims Hellmuth had against

ConArt were arbitrable. It declined to enter a declaratory judgment to the contrary

and denied ConArt’s request for an injunction against arbitration of those claims. 

That ruling left the original claims that ConArt had asserted against

Hellmuth pending before the district court. In spite of that, ConArt filed an appeal

of the district court’s order declining to declare the claims Hellmuth was asserting

against it non-arbitrable and refusing to enjoin them. The first, and as it turns out

last, issue before us is whether we have jurisdiction to decide this appeal. The

order ConArt is seeking to have reviewed is not a final order within the meaning of

28 U.S.C. § 1291, because the claims ConArt brought against Hellmuth are still

pending in the district court. 

The appealability of interlocutory orders disposing of arbitration issues is

governed by 9 U.S.C. § 16. That section specifically provides that: “Except as

otherwise provided in section 1292(b) of title 28, an appeal may not be taken from

an interlocutory order—refusing to enjoin an arbitration that is subject to this title.” 

9 U.S.C. § 16(b)(4). The district court’s order is one refusing to enjoin an

arbitration that is subject to Title 9, which is the Federal Arbitration Act. This is
4

not a § 1292(b) proceeding in which permission to appeal has been sought and

obtained in the district court and this court. So, the plain terms of § 16(b) fit this

situation snugly; there is no wiggle room. 

ConArt argues that 28 U.S.C. § 1292(a)(1), which authorizes interlocutory

appeals generally of orders “refusing . . . injunctions” gives us jurisdiction over

this appeal. That argument has too much throw weight. Accepting it would write

out FAA § 16(b)(4)’s clear command, because all orders “refusing to enjoin an

arbitration” are orders “refusing . . . injunctions.” We don’t have the authority to

excise specific statutory provisions in favor of more general ones. 

Instead, when presented with a potential overlap between the broadly

sweeping terms of a statute of general application that appears to apply to an entire

class, and the narrow but specific terms of a statute that applies to only a subgroup

of that class, we avoid conflict between the two by reading the specific as an

exception to the general. See Edmond v. United States, 520 U.S. 651, 657, 117 S.

Ct. 1573, 1578 (1997); Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir. 2003);

Balfour Beatty Bah., Ltd. v. Bush, 170 F.3d 1048, 1050 (11th Cir. 1999). 28

U.S.C. § 1292(a)(1) and 9 U.S.C. § 16(b) can peacefully co-exist if we read the

former as not applying to situations specifically described in the latter. 

Subsection 1292(a) of Title 28 preceded the Judicial Improvements and
All decisions from the Fifth Circuit rendered before October 1, 1981 are binding 1

precedent on the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc).

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Access to Justice Act, which amended the Federal Arbitration Act to include the

provision governing appellate jurisdiction of arbitration orders that is now

contained in 9 U.S.C. § 16(b). See Pub. L. No. 248-655, 63 Stat. 954 (codified as

amended at 28 U.S.C. § 1292(a) (1951)); Pub. L. No. 100-702, § 1019, 102 Stat.

4642 (codified as amended at 9 U.S.C. § 16(b) (1988)). Therefore, our reading of

them is also consistent with the canon that where two statutory provisions would

otherwise conflict, the earlier enacted one yields to the later one to the extent

necessary to prevent the conflict. See Tug Allie-B, Inc. v. United States, 273 F.3d

936, 948 (11th Cir. 2001); ICC v. S. Ry. Co., 543 F.2d 534, 539 (5th Cir. 1976).1

Our reading of the two jurisdictional provisions does not run afoul of this

Court’s holdings in American Express Financial Advisors, Inc. v. Makarewicz, 122

F.3d 936 (11th Cir. 1997), or Brandon, Jones, Sandall, Zeide, Kohn, Chalal &

Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349 (11th Cir. 2002). The

Makarewicz case is distinguishable because the order we reviewed in that case

denied a motion for injunctive relief that was specifically limited to the nonarbitrable claims in the case. 122 F.3d at 938. Because it did not refuse to enjoin

an arbitration, that order did not fall within the prohibition on interlocutory appeal
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contained in § 16(b)(4). Id. at 939. Nor did it fall within the prohibitions in the

other parts of that subsection of the FAA. Id. The Brandon decision allowed an

interlocutory appeal from an order of the district court dissolving a state court

injunction. 312 F.3d at 1356. Because an order dissolving another court’s

injunction does not fall within § 16(b), the Brandon decision cannot be precedent

for the proposition that we have interlocutory appellate jurisdiction over an order

that does. 

We are mindful of ConArt’s insistence that even if the order refusing to

enjoin an arbitration cannot be reviewed interlocutorily because of § 16(b)(4), it

ought to be treated as a final order under the Cohen collateral order doctrine. One

of the requirements of that doctrine is that the order “be effectively unreviewable

on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349, 126 S. Ct.

952, 957 (2006) (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 144, 113 S. Ct. 684, 688 (1993)). An order refusing to enjoin an

arbitration can be reviewed after final judgment is entered in the case following the

conclusion of arbitration. ConArt argues that what it wants to do is avoid

arbitration, and the order denying it the ability to do that will not be reviewable

after argument is completed. The Supreme Court has held that the “mere

avoidance of a trial . . . [is not all] that counts when asking whether an order is
7

‘effectively’ unreviewable if review is to be left until later.” Id. at 353, 126 S. Ct.

at 959. The same is true of arbitration. 

Besides, the waste not reasoning in favor of interlocutory review that

ConArt urges on us is another argument that is too strong for its purpose. If we

base jurisdiction on the desire to avoid the risk of arbitration proceedings that may

later be held to be unnecessary, every order refusing to enjoin arbitration would be

reviewable. Nothing would be left of § 16(b) of the FAA. Applying the Cohen

collateral order doctrine to permit an appeal that § 16(b) specifically prohibits, as

ConArt urges, would amount to using a judge-made doctrine to erase an

unequivocal congressional command. That we will not do.

The appeal is DISMISSED for want of appellate jurisdiction.