The Week in Federal Appellate Jurisdiction: May 2–8, 2021

Quick roundup this week. The Eleventh Circuit said that a decision dissolving an injunction against arbitration doesn’t count as an order modifying an injunction against arbitration. So litigants can’t appeal from the dissolution decision. And the Fifth Circuit reviewed the interpretation of a consent decree via the collateral-order doctrine, using some case-specific reasoning on its way to deeming the order appealable.

• The Eleventh Circuit on Appeals from Orders Dissolving Injunctions Against Arbitration
• A Case-Specific Collateral-Order Appeal From the Interpretation of a Consent Decree

The Eleventh Circuit on Appeals from Orders Dissolving Injunctions Against Arbitration

In Raymond James Financial Inc. v. Cordova Armijos, the Eleventh Circuit dismissed an appeal from an order that dissolved a temporary restraining order against arbitration.

Raymond James arose out investors’ purchases of allegedly fraudulent financial products. A group of investors sought arbitration before the Financial Industry Regulatory Authority (commonly known as “FINRA”). The brokerage then filed suit in federal court, arguing that the claims were not subject to FINRA arbitration and asking the district court to enjoin the arbitration. The district court initially entered a temporary restraining order against arbitration. But it eventually refused the brokerage’s request for a preliminary injunction. And when it did so, the district court dissolved the temporary restraining order. The brokerage then appealed.

Everyone agreed that that the brokerage could not appeal the district court’s refusal to enter a preliminary injunction. With an irrelevant exception, 9 U.S.C. § 16(b)(4) bars immediate appeals from orders “refusing to enjoin an arbitration.” So the preliminary-injunction denial was outside of the Eleventh Circuit’s appellate jurisdiction. The brokerage argued, however, that the district court’s dissolving the temporary restraining order was appealable. In doing so, the brokerage relied on § 16(a)(2). That subsection allows litigants to immediately appeal from orders “granting, continuing, or modifying an injunction against an arbitration.”

The Eleventh Circuit rejected that argument and dismissed the appeal. For one thing, the case didn’t necessarily involve an injunction. Temporary restraining orders are generally not considered injunctions for appeal purposes. So although 28 U.S.C. § 1292(a)(1) gives the courts of appeals jurisdiction over orders “granting, continuing, modifying, refusing or dissolving injunctions,” temporary restraining orders don’t fall under § 1292(a)(1). To be appealable, a temporary restraining order must effectively be an injunction. Courts have treated temporary restraining orders as injunctions when, for example, the order has an indefinite length and was issued after an adversarial hearing.

The Eleventh Circuit ultimately declined to decide whether the temporary restraining order in Raymond James was effectively an injunction. Even if it was, there was another hurdle. Although § 16(a)(2) allows for appeals from orders modifying an injunction against arbitration, the dissolution of an injunction is not be the kind of modification that the statute has in mind. The Eleventh Circuit has interpreted § 16(a)(2) to permit “appeals from orders that somehow prevent arbitration from going forward.” The dissolution of an injunction does not prevent arbitration. So it’s not a modification of an injunction as contemplated by § 16(a)(2). It is instead better characterized as the refusal to enjoin arbitration. And § 16(b)(4) bars appellate review of those orders.

The Eleventh Circuit accordingly could not review the district court’s decision to dissolve the temporary restraining order and dismissed the appeal.

Raymond James Financial Inc. v. Cordova Armijos, 2021 WL 1752064 (11th Cir. May 4, 2021), available at the Eleventh Circuit and Westlaw.

A Case-Specific Collateral-Order Appeal From the Interpretation of a Consent Decree

In San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp., the Fifth Circuit reviewed the district court’s interpretation of a consent decree.

The decree stemmed from a dispute over environmental cleanup costs, with the defendant agreeing to pay for its discharge of plastic into waterways. While implementing the decree, the parties disagreed over what triggered the defendant’s obligations: a new discharge of plastics, or the mere detection of plastics in the waterways (regardless of when they had been discharged). The district court interpreted the decree to trigger the defendant’s obligations anytime plastics were detected. The defendant then appealed.

The Fifth Circuit said that it had jurisdiction via the collateral-order doctrine. That doctrine deems an otherwise-interlocutory order “final” when the order (1) conclusively decides an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. The court of appeals thought that the district court’s interpretation of the consent decree satisfied each requirement. The district court’s decision “conclusively resolved an important and disputed issue separate from the merits of” of the defendant’s liability: the scope of the defendant’s obligations under the decree. And that decision, the Fifth Circuit thought, would be “effectively unreviewable on appeal from a final judgment.”

San Antonio Bay looks a little non-categorical in its reasoning. Decisions applying the collateral-order doctrine should be categorical: either a type of decision satisfies the doctrine and is always appealable, or it’s not. Courts are not supposed to look to the circumstances of particular cases in deciding appealability. Yet they sometimes do. And the need to do so is somewhat understandable. Despite its purportedly strict requirements, the collateral-order doctrine often involves a pragmatic weighing of the costs and benefits of an immediate appeal. But courts must make this pragmatic assessment with limited data: the particular case before the court. It’s no wonder that they sometimes rely on case-specific considerations. I’d imagine that the pressure to do so is even greater in post-judgment enforcement proceedings, which don’t always have a clear end point.

San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp., 2021 WL 1726813 (5th Cir. Apr. 30, 2021), available at the Fifth Circuit and Westlaw.