* District Judge for the Northern District of Texas, sitting

by designation.

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United States Court of Appeals

Fifth Circuit

FILED

October 25, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 03-30894

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ROBERT ROCCO MIRE,

Plaintiff - Appellant

v.

FULL SPECTRUM LENDING INC. and

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

Before BARKSDALE and PICKERING, Circuit Judges, and LYNN,*

District Judge.

LYNN, J: District Judge

This is an appeal from an order compelling arbitration. For

the reasons discussed below, we dismiss for lack of jurisdiction. 

I. BACKGROUND

In 2000 and 2001, Appellant Robert Rocco Mire obtained two

loans, in the total principal amount of $45,000, from Appellee

Full Spectrum Lending, Inc. Both loans were secured by a

mortgage on Mire’s house. Appellee Mortgage Electronic
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Registration Services, Inc. (“MERS”) was the nominal mortgagee. 

As part of both loan agreements, Mire and Full Spectrum

agreed to arbitrate before the National Arbitration Forum (“NAF”)

disputes which were connected to the loan transactions, other

than certain enumerated exceptions, which are inapplicable here. 

They also agreed to arbitrate third party claims connected to the

loan transactions. At the top of the first page of each

agreement, in all capital letters, is typed “ARBITRATION

AGREEMENT.” On the line just below, in boldface and in all

capital letters, appears the following: “READ THE FOLLOWING

ARBITRATION AGREEMENT CAREFULLY.” On the second page, just above

Mire’s signature, in bold print and all capital letters, each

agreement states:

WAIVERS: BY ENTERING INTO THIS AGREEMENT, WE AND YOU

EACH KNOWINGLY AND VOLUNTARILY WAIVE (1) ANY AND ALL

RIGHTS EITHER HAVE UNDER LAW TO PURSUE REMEDIES IN

COURT, INCLUDING, BUT NOT LIMITED TO, A TRIAL BEFORE A

JURY, EXCEPT FOR THE EXCLUDED CLAIMS, (2) THE RIGHT TO

PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS

OF CLAIMANTS PERTAINING TO ANY CLAIM, AND (3) THE RIGHT

TO PRETRIAL DISCOVERY OTHER THAN THE LIMITED DISCOVERY

PROVIDED FOR IN THIS AGREEMENT.

YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS

AGREEMENT AND AFFIRM THAT YOU UNDERSTAND ITS TERMS AND
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ARE ENTERING INTO THIS AGREEMENT VOLUNTARILY AND NOT IN

RELIANCE ON ANY PROMISES OR REPRESENTATIONS OTHER THAN

THOSE CONTAINED IN THIS AGREEMENT ITSELF.

In June of 2002, Mire defaulted on the July 2001 note. In

October of 2002, MERS initiated a foreclosure action against

Mire. In January of 2003, Mire filed suit in district court,

seeking, among other relief, a temporary restraining order and

preliminary injunction to prevent MERS from proceeding with

foreclosure. Mire alleged that he did not receive disclosures 

that should have been given three days in advance of the loan

closings, in violation of the Homeownership and Equity Protection

Act (HOEPA), 15 U.S.C. § 1639. Mire further alleged that he

received inaccurate disclosures relating to the cost of the loan,

in violation of the Truth in Lending Act, 15 U.S.C. § 1604 et

seq. and Regulation Z, 12 C.F.R. § 226. 

Full Spectrum and MERS filed a motion to compel arbitration

and to stay Mire’s lawsuit pending arbitration. In his

opposition, Mire argued that the arbitration agreements were

unenforceable because (1) they lacked mutuality; (2) they

unfairly limited discovery; (3) NAF is inherently biased in favor

of lenders; and (4) Mire could not afford to pay potentially

expensive arbitration costs. 

On August 8, 2003, the district court concluded that the

arbitration agreements were enforceable and entered an order
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granting the motion to compel arbitration, and staying Mire’s 

lawsuit pending arbitration. The district court further ordered

that the case be “administratively closed”. The district court

also denied Mire’s pending motion to compel discovery as moot.

Mire filed a timely notice of appeal. Full Spectrum and

MERS filed a motion to dismiss the appeal.

II. ANALYSIS

As a threshold matter, this Court must decide whether the

district court’s order compelling arbitration, staying

proceedings, and administratively closing the case constitutes an

appealable order. If not, then this Court lacks jurisdiction and

the appeal should be dismissed, which would pretermit any

consideration of the merits of Mire’s appeal.

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 16, states

that an appeal may be taken from (1) a final order with respect

to an arbitration subject to the FAA (§ 16(a)(3)); (2) an order

refusing a stay of any action under section 3 of the FAA (§

16(a)(1)(A)); and (3) an order denying an application under

section 206 of the FAA to compel arbitration (§ 16 (a)(1)(C)). 

The FAA further provides that “[e]xcept 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....” 9 U.S.C. § 16(b)(1). Section 3 of
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the FAA states that once the trial court is satisfied that an

issue is referable to arbitration, the court “shall on

application of one of the parties stay the trial of the action

until such arbitration has been had....” In this case, the

district court followed these statutory directives when it

referred the action to arbitration and stayed Mire’s lawsuit.

The Supreme Court addressed the appealability of an order

compelling arbitration in Green Tree Financial Corp.- Alabama v.

Randolph, 531 U.S. 79 (2000). In Green Tree, the district court

compelled arbitration, and dismissed the respondent’s claims with

prejudice, “leaving the court nothing to do but execute the

judgment.” Id. at 86. The Supreme Court held that “where, as

here, the District Court has ordered the parties to proceed to

arbitration, and dismissed all the claims before it, that

decision is ‘final’ within the meaning of § 16(a)(3), and

therefore appealable.” Id. at 89. In a footnote of particular

significance to this case, the Supreme Court noted that “[h]ad

the District Court entered a stay instead of a dismissal in this

case, that order would not be appealable. 9 U.S.C. § 16(b)(1).” 

Id. at 87 n.2. Although Appellant asserts that this statement is

“dicta,” in fact, it merely repeats the statutory mandate of 

§ 16(b)(1), which provides that an appeal may not be taken from

an interlocutory order granting a stay. 

In 2002 and 2003, this court decided four cases dealing with
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the issue of appealability of arbitration orders. In the first

of the cases, American Heritage Life Ins. Co. v. Orr, 294 F.3d

702 (5th Cir. 2002), the district court entered an order

compelling arbitration, staying related state court litigation,

and “closing” the case. This court had to determine whether

those actions of the trial court amounted to an appealable final

order of dismissal. This court held that the order was

appealable, emphasizing that “there is no practical distinction

between ‘dismiss’ and ‘close’ for purposes of this appeal,” where

“[t]he application of each word results in a termination on the

merits, leaving the judgment-rendering court with nothing more to

do but execute the judgment.” Id. at 708. 

Next, in Gulf Guaranty Life Ins. v. Connecticut General Life

Ins., 304 F.3d 476 (5th Cir. 2002), this court again had to

determine the finality of a district court’s decision. The

district court dismissed a lawsuit filed in 2000, which had been

consolidated with a lawsuit filed in 1996, which had been stayed

pending arbitration. The court again ordered arbitration, and

dismissed the lawsuit filed in 2000, but said nothing directly

about the status of the earlier stayed suit. This court

concluded that “[t]he district court’s failure to reference

explicitly the 1996 first-filed suit as dismissed in the court’s

... order compelling arbitration of the entire consolidated

action was simply an oversight. Clearly, the intention, as well
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as the effect, was to dismiss it.” Id. at 483. Finding that the

district court intended its order to be final, this court

concluded it had jurisdiction over the appeal.

In Saturn Distribution Corp. v. Paramount Saturn, Ltd., 326

F.3d 684 (5th Cir. 2003), this court determined that an order

compelling arbitration was a “final decision” pursuant to the

analysis of Green Tree because (1) the district court closed the

case; (2) the district court’s order was labeled a “Final

Judgment,” and contained language further describing it as a

final judgment, thereby clearly expressing the court’s intent to

end the entire matter on the merits; and (3) the district court’s

order was not accompanied by an explicit stay. Id. at 686-87.

The most recent authority of this court on the finality of

an order compelling arbitration is Apache Bohai Corp. v. Texaco

China, B.V., 330 F.3d 307 (5th Cir. 2003). In Apache Bohai this

court held that the district court’s order was not appealable

because it had not dismissed the case, but instead simply entered

a stay pending arbitration. Id. at 309. As Appellant argues

here, Apache Bohai maintained that “when a district court enters

an order staying an action and referring all disputed matters to

arbitration, leaving no live issues before the district court,

this court should consider the order to be, in effect, a de facto

dismissal and thus a final decision appealable under § 16(a)(3).” 

Id. This court rejected that argument and explained that
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“although it may be true that in some instances the entry of a

stay disposes of most or all issues, that fact alone does not

render it the functional equivalent of a dismissal.” Id. “An

arbitration order entering a stay, as opposed to a dismissal, is

not an appealable final order.” Id. Accord, ATAC Corp. v.

Arthur Treachers, Inc., 280 F.3d 1091 (6th Cir. 2002) (case

stayed and closed). Referring to American Heritage, this court

noted in Apache Bohai that “[i]n this case, by contrast, the

court did not purport to close the case administratively, nor did

it attempt in any way to terminate its involvement in the

proceedings.” Id. at 310. In American Heritage, there is no

reference to an administrative closure. There, the district

court merely “closed” the case, and this court found that action

to be the equivalent of a dismissal.

Were it not for the administrative closure by the court

below, and the cited language in Apache Bohai, this case would be

easily disposed of, as one involving a non-appealable stay. 

However, Appellant asserts that the administrate closure is akin

to a dismissal, and which the dictum in Apache Bohai suggests

would be a final, immediately appealable order.

Unlike the facts in Apache Bohai, here this court is

presented with an administrative closure by the court below. 

District courts frequently make use of this device to remove from

their pending cases suits which are temporarily active elsewhere
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(such as before an arbitration panel) or stayed (such as where a

bankruptcy is pending). The effect of an administrative closure

is no different from a simple stay, except that it affects the

count of active cases pending on the court’s docket; i.e.,

administratively closed cases are not counted as active. See

Lehman v. Revolution Portfolio LLC, 166 F.3d 389, 392 (“This

method is used in various districts throughout the nation in

order to shelve pending, but dormant, cases.”) In contrast, cases

stayed, but not closed, are counted as active. This case still

exists on the docket of the district court and may be reopened

upon request of the parties or on the court’s own motion. That

situation is the functional equivalent of a stay, not a

dismissal, and is thus not an appealable order under the FAA. 

This court thus does not have jurisdiction over this appeal and

does not reach the merits of Mire’s other issues.

III. CONCLUSION

For the foregoing reasons, this appeal is DISMISSED for lack

of jurisdiction. The case presents no appealable order.

DISMISSED