Positano Place at Naples III Condominium Association, Inc. v. Empire Indemnity Insurance Company

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
Nos. 22-11059, 22-10877, 22-11060, 22-10889
____________________
POSITANO PLACE AT NAPLES I CONDOMINIUM
ASSOCIATION, INC.,
a Florida not-for-profit Corporation,
POSITANO PLACE AT NAPLES II CONDOMINIUM
ASSOCIATION, INC.,
a Florida not-for-profit Corporation,
POSITANO PLACE AT NAPLES III CONDOMINIUM
ASSOCIATION, INC.,
a Florida not-for-profit Corporation,
POSITANO PLACE AT NAPLES IV CONDOMINIUM
ASSOCIATION, INC.,
a Florida not-for-profit Corporation,
Plaintiffs-Appellees,
versus
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2 Opinion of the Court 22-11059
EMPIRE INDEMNITY INSURANCE COMPANY,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket Nos. 2:21-cv-00178-SPC-MRM, 2:21-cv-00181-SPC-
MRM, 2:21-cv-00183-SPC-MRM, 2:21-cv-00186-SPC-MRM
____________________
Before L UCK , L AGOA, and T JOFLAT, Circuit Judges.
L AGOA, Circuit Judge:
On our own motion, we vacate our prior opinion, and sub-
stitute it with the following opinion. Empire’s motion for panel
rehearing is denied as moot.
These appeals1 are about a pending insurance contract dis-
pute between Positano Place at Naples I Condominium Associa-
tion, Inc., and Empire Indemnity Insurance Company, which is-
sued an insurance policy (the “Policy”) to Positano for coverage of
five buildings that Positano owns in Naples, Florida. Following
Hurricane Irma, Positano filed a first-party claim for property in-
surance benefits under the Policy, claiming that Hurricane Irma
1 We previously consolidated case numbers 22-11059, 22-10877, 22-11060, and
22-10889 for purposes of hearing oral argument in those cases. We now sua
sponte consolidate those cases for purposes of resolving these appeals.
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22-11059 Opinion of the Court 3
damaged its property and that the damage was covered by the Pol-
icy. After Empire investigated Positano’s claim, Empire deter-
mined that there was coverage as to only three of the five buildings
covered by the Policy but disagreed as to the amount of the loss.
In response, Positano sought to invoke appraisal based on the Pol-
icy’s appraisal provision. When Empire did not respond to Posi-
tano’s appraisal demand, Positano sued Empire in Florida state
court, and Empire removed the case to federal court based on di-
versity jurisdiction.
Following removal, Positano moved to compel appraisal
and to stay the case pending the resolution of the appraisal proceed-
ings, which Empire opposed. The magistrate judge issued a report
recommending that the district court grant Positano’s motion, and,
over Empire’s objection, the district court ordered the parties to
appraisal and stayed the proceedings pending appraisal. Empire
timely appealed the district court’s order.
We issued a jurisdictional question to the parties asking
them to address whether this Court had appellate jurisdiction over
an order that compelled appraisal, stayed the case pending ap-
praisal, and directed the parties to file status reports on the ap-
praisal process. We also asked the parties to address whether or-
ders compelling appraisal are treated the same as orders compelling
arbitration for purposes of appellate jurisdiction.
After careful review, and with the benefit of oral argument,
we conclude that the district court’s order compelling appraisal and
staying the proceedings pending appraisal is an interlocutory order
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4 Opinion of the Court 22-11059
that is not immediately appealable under 28 U.S.C. § 1292(a)(1).
We also conclude that the order compelling appraisal and staying
the action pending appraisal is not immediately appealable under
the Federal Arbitration Act (“FAA”). Accordingly, for the reasons
stated below, we dismiss the appeal for lack of appellate jurisdic-
tion.
I. RELEVANT BACKGROUND2
Empire issued the Policy to Positano for five buildings
owned by Positano in Naples, Florida (the “Insured Property”).
The Policy has a total coverage value in the millions of dollars, and
each of the buildings is separately scheduled and subject to a 3 per-
cent hurricane deductible. The Policy contains the following ap-
praisal provision:
Mediation Or Appraisal
If we and you:
. . . .
B. Disagree on the value of the property or the
amount of loss, either may request an appraisal of the
loss, in writing. In this event, each party will select a
competent and impartial appraiser. The two apprais-
ers will select an umpire. If they cannot agree, either
may request that selection be made by a judge of a
2 In these consolidated appeals, the facts, procedural histories, and arguments
made below and on appeal are largely the same. For purposes of this opinion,
our discussion of the facts and procedural history focuses on those in Positano
Place at Naples I Condominium Association, Inc., v. Empire Indemnity Insurance
Company, No. 22-11059.
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22-11059 Opinion of the Court 5
court having jurisdiction. The appraisers will state
separately the value of the property and amount of
loss. If they fail to agree, they will submit their differ-
ences to the umpire. A decision agreed to by any two
will be binding. Each party will:
1. Pay its chosen appraiser; and
2. Bear the other expenses of the appraisal and umpire
equally.
If there is an appraisal, we will still retain our right to
deny the claim.
However, you are not required to submit to, or par-
ticipate in, any appraisal of the loss as a precondition
to action against us for failure to pay the loss, if we:
1. Requested mediation and either party rejected the
mediation result; or
2. Failed to notify you of your right to participate in
the mediation program.
On September 10, 2017, Hurricane Irma struck Naples.
Nearly seven months later, Positano notified Empire of storm dam-
age to the Insured Property. Empire investigated the claim and in-
spected the Insured Property. Empire and Positano exchanged a
series of letters relating to Positano’s claim over a period of approx-
imately three years. The details of those letters are not relevant to
the issue before us. Suffice it to say that the parties disagreed about
the amount of covered losses incurred by Positano as a result of
Hurricane Irma.
At some point during this process, Positano sent a written
request for appraisal to Empire. After Positano’s appraisal request
went unanswered, it filed a complaint against Empire in Florida
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6 Opinion of the Court 22-11059
state court. Empire subsequently removed the action to the United
States District Court for the Middle District of Florida on the basis
of diversity jurisdiction. After its initial complaint was dismissed in
part, Positano filed its amended complaint. In its amended com-
plaint, Positano asserted three claims: (1) specific performance; (2)
breach of contract; and (3) declaratory judgment. As to specific
performance, Positano alleged that the Policy’s appraisal provision
demonstrated the parties’ intention to have disputes related to cau-
sation, scope, and loss be resolved through the appraisal process
upon either party’s demand. It alleged that the parties’ dispute was
not a coverage dispute but a dispute over the amount of loss. As
to the breach of contract claim, Positano alleged that Empire
acknowledged loss and coverage but had failed to comply with its
contractual obligations to engage in the appraisal process and had
not paid in full for the covered losses suffered by Positano. And, as
to the declaratory judgment claim, Positano asked the district court
to declare, among other things, that it had “properly invoked the
Policy’s appraisal provision.”
Empire’s answer asserted nineteen affirmative defenses
against Positano’s claims. Many of these affirmative defenses are
coverage defenses, and, at the time this appeal was filed, the district
court had not issued any dispositive rulings as to those coverage
defenses.
Positano then moved to compel appraisal and to stay the
proceedings pending completion of appraisal. The district court
referred the motion to compel to a magistrate judge. The
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22-11059 Opinion of the Court 7
magistrate judge issued a report recommending that the district
court grant Positano’s motion, finding that Empire did not dispute
Positano’s assertion that a “dispute has arisen over the scope and
amount of [its] damages” and that requiring the parties to engage
in appraisal was therefore appropriate.
As relevant to this appeal, the magistrate judge rejected Em-
pire’s contention that “compelling appraisal is an injunctive rem-
edy in the form of specific performance,” which cannot be required
because Positano failed to show entitlement to specific perfor-
mance, and concluded that Positano was not required to plead and
prove the elements of specific performance to compel appraisal be-
cause Florida case law suggested that methods of alternative dis-
pute resolution, e.g., appraisal, should be employed when possible.
The magistrate judge also rejected Empire’s argument that ap-
praisal could not be compelled absent a final determination about
whether it breached the Policy’s appraisal provision. The magis-
trate judge explained that, unlike summary judgment, an appraisal
does not determine whether there is a genuine disputed material
fact or there is entitlement to judgment and can be sought through
breach of contract and declaratory judgment actions as a form of
alternative dispute resolution.
The district court accepted and adopted the report and rec-
ommendation in full, and also provided additional analysis in its
order. As relevant to this appeal, the district court addressed Em-
pire’s argument that Positano must first obtain judgment in its fa-
vor for specific performance before an appraisal could take place.
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8 Opinion of the Court 22-11059
The district court explained that “[t]he problem for Empire—and
for Positano in its attempt to plead a count for specific performance
(as an alternative to its breach of contract and declaratory relief
counts)—is that the appraisal process is not remedial.” The district
court noted that participation in the appraisal process would not
remedy the damages caused by Hurricane Irma; it would simply be
“one step in this process, supplying an extra-judicial mechanism to
calculate the amount of loss.” The district court stated that ap-
praisal is a form of alternative dispute resolution and that its
“source of authority to order the parties to participate in an alter-
native dispute process comes from its subject-matter jurisdiction
over a contract dispute where the contract contains a provision
where the parties contracted for the right to have amount-of-loss
disputes decided informally by experienced appraisers.” And the
district court stated that appraisal would not dispose of any of the
claims or defenses.
This appeal ensued. During this appeal, we issued a jurisdic-
tional question to the parties asking them to address the basis of
our jurisdiction to review the order compelling appraisal in this
case as well as whether an order compelling appraisal is treated the
same as an order compelling arbitration for purposes of appellate
jurisdiction. Following the parties’ briefing, we carried the juris-
dictional issue with the case and now resolve it in this opinion.
II. STANDARD OF REVIEW
We review de novo an order granting a party’s motion to
compel appraisal. See Jacobs v. Nationwide Mut. Fire Ins. Co., 236 F.3d
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22-11059 Opinion of the Court 9
1282, 1285 (11th Cir. 2001). We also review de novo our appellate
jurisdiction. Thomas v. Phoebe Putney Health Sys., Inc., 972 F.3d 1195,
1200 (11th Cir. 2020).
III. ANALYSIS
“We have a duty to assure ourselves of our jurisdiction at all
times in the appellate process.” Id. (quoting Overlook Gardens
Props., LLC v. ORIX USA, L.P., 927 F.3d 1194, 1198 (11th Cir. 2019)).
Therefore, before we can review the order compelling appraisal in
this case, we must determine whether we have jurisdiction to do
so. See World Fuel Corp. v. Geithner, 568 F.3d 1345, 1348 (11th Cir.
2009). For an order to be appealable, it “must either be final or fall
into a specific class of interlocutory orders that are made appealable
by statute or jurisprudential exception.” CSX Transp., Inc. v. City of
Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000); see 28 U.S.C.
§§ 1291–92. Title 28 U.S.C. § 1291 provides us with appellate juris-
diction of final decisions of the district courts, while § 1292 provides
for review of certain classes of interlocutory orders. Additionally,
for an order disposing of a request to compel arbitration, the FAA
governs the appealability of such an order. Am. Express Fin. Advi-
sors, Inc. v. Makarewicz, 122 F.3d 936, 939 (11th Cir. 1997).
We begin our analysis by addressing whether we have ap-
pellate jurisdiction under either 28 U.S.C. § 1291 or 28 U.S.C.
§ 1292. We then explain why we do not have appellate jurisdiction
under the FAA.
A. Whether the Order Compelling Appraisal Is Appealable
Under 28 US.C. §§ 1291 or 1292(a)
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10 Opinion of the Court 22-11059
Under § 1291, the federal courts of appeals “shall have juris-
diction of appeals from all final decisions of the district courts of the
United States.” “A final decision is ‘one which ends the litigation
on the merits and leaves nothing for the court to do but execute
the judgment.’” CSX Transp., 235 F.3d at 1327 (quoting Pitney
Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983)). When
“a district court anticipates that further proceedings on substantive
matters may be required, any order it makes to facilitate those fur-
ther proceedings is necessarily not final.” Broussard v. Lippman, 643
F.2d 1131, 1133 (5th Cir. Unit A Apr. 1981).3
Here, we conclude that the order compelling appraisal in
this case is not a final order appealable under § 1291. In its order,
the district court explicitly contemplated further proceedings, ex-
plaining that the appraisal would not dispose of any of the claims
in the case nor Empire’s coverage defenses. Further, in Florida,
“[a]ppraisal exists for a limited purpose—the determination of ‘the
amount of the loss.’” Citizens Prop. Ins. Corp. v. Mango Hill #6
Condo. Ass’n, Inc., 117 So. 3d 1226, 1230 (Fla. Dist. Ct. App. 2013).
“[A]n agreement for appraisal extends merely to the resolution of
the specific issues of actual cash value and ‘amount of loss,’” and
“all issues other than those contractually assigned to the appraisal
panel are reserved for determination in a plenary action.” Id. at
1229. And notably, Florida courts do not consider an order
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down before the close of business on September 30, 1981.
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22-11059 Opinion of the Court 11
compelling appraisal to be a final order. See, e.g., People’s Tr. Ins.
Co. v. Garcia, 263 So. 3d 231, 233 (Fla. Dist. Ct. App. 2019); see also
Fla. R. App. 9.130(a)(3)(C)(iv) (“Appeals to the district courts of ap-
peal of nonfinal orders are limited to those that . . . determine . . .
the entitlement of a party to . . . an appraisal under an insurance
policy.”). Thus, we do not have appellate jurisdiction to review the
order compelling appraisal under § 1291, as it is not a final order.
Because the order compelling appraisal is not a final order
appealable under § 1291, we now turn to the question of whether
it falls within one of the classes of appealable, interlocutory orders
under § 1292. In doing so, we are mindful that “interlocutory ap-
peals are inherently “disruptive, time-consuming, and expensive,”
and thus “are generally disfavored.” Prado-Steiman ex rel. Prado v.
Bush, 221 F.3d 1266, 1276 (11th Cir. 2000) (quoting Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir. 2000)).
Section 1292(a) creates a narrow exception from the “long-
established policy against piecemeal appeals.” Gardner v. Westing-
house Broad. Co., 437 U.S. 478, 480 (1978). Under that statute, the
courts of appeals have appellate jurisdiction over certain classes of
interlocutory orders, including interlocutory orders “granting, con-
tinuing, modifying, refusing or dissolving injunctions, or refusing
to dissolve or modify injunctions.” § 1292(a)(1). Thus, as a thresh-
old matter, we must determine whether the district court’s order
that only compelled appraisal, and stayed the proceedings pending
the appraisal process, was an explicit grant of an injunction.
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12 Opinion of the Court 22-11059
While Empire argues that the district court’s order here ex-
plicitly granted an injunction, we disagree. As an initial matter,
while the district court did not characterize its order as the grant of
an injunction, we are not governed by that characterization. Bir-
mingham Fire Fighters Ass’n 117 v. Jefferson County¸280 F.3d 1289,
1292 (11th Cir. 2002). “Instead, we make our own determination,
and in doing so we take a ‘functional approach, looking not to the
form of the district court’s order but to its actual effect.’” Id. at 1293
(quoting Sierra Club v. Marsh, 907 F.2d 210, 213 (1st Cir. 1990)).
Taking this approach, we conclude that the appraisal order is not
the explicit grant of an injunction for the following reasons. First,
Positano did not move for an injunction, nor did it pursue any
claim for injunctive relief in its operative complaint. Rather, Posi-
tano simply moved to compel appraisal based on the appraisal pro-
vision in the Policy that was agreed to by the parties. Second, in
granting the motion, the district court did not make the findings of
fact and conclusions of law that normally support an order granting
injunctive relief. See Klay v. United Healthgroup, Inc., 376 F.3d 1092,
1097 (11th Cir. 2004) (“A district court may grant injunctive relief
only if the moving party shows that: (1) it has a substantial likeli-
hood of success on the merits; (2) irreparable injury will be suffered
unless the injunction issues; (3) the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause
the opposing party; and (4) if issued, the injunction would not be
adverse to the public interest.” (quoting Siegal v. Lepore, 234 F.3d
1163, 1176 (11th Cir. 2000) (en banc))). Nor did the district court
comply with the requirements set forth in Federal Rule of Civil
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22-11059 Opinion of the Court 13
Procedure 65(d).4 Cf. Supreme Fuels Trading FZE v. Sargeant, 689 F.3d
1244, 1247 (11th Cir. 2012) (Pryor, J., concurring) (“‘[T]he absence
of any semblance of effort by the [d]istrict [c]ourt to comply with
Rule 65(d)’ is evidence that the district court did not intend to enter
‘an order granting an injunction.’” (quoting Gunn v. Univ. Comm. to
End the War in Viet Nam, 399 U.S. 383, 389 n.4 (1970))).
Instead, in compelling the parties to appraisal, the district
court emphasized that “the appraisal process is not remedial.” (Em-
phasis added). The court reasoned that “[j]ust as an order requiring
the parties to attend a mediation is not remedial, participation in
the appraisal process will not remedy the damages caused by Hur-
ricane Irma.” The court explained that appraisal was simply “one
step in this process, supplying an extra-judicial mechanism to cal-
culate the amount of loss.” See also State Farm Fla. Ins. Co. v. Crispin,
4 Our dissenting colleague notes that, in Abbott v. Perez, 138 S. Ct. 2305, 2321
(2018), the Supreme Court stated that it had “never suggested that a failure to
meet the specificity requirements of Rule 65(d) would ‘deprive the Court of
jurisdiction.’” Dis. Op. at 15–16. However, our consideration of the district
court not complying with the requirements of Rule 65(d) relates only to
whether the appraisal order is an injunction, not the ultimate jurisdictional is-
sue presented by this case. As we later explain, we also have appellate juris-
diction over “orders that have the practical effect of granting or denying in-
junctions and have ‘serious, perhaps irreparable, consequence.’” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 277–78 (1988) (quoting Carson
v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). The Court in Abbott explained that
the failure to comply with Rule 65(d) is not relevant to the practical effect anal-
ysis, see 138 S. Ct. at 2321, and we likewise do not rely on Rule 65(d) in deter-
mining whether the appraisal order had the practical effect of granting an in-
junction.
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14 Opinion of the Court 22-11059
290 So. 3d 150, 151 (Fla. Dist. Ct. App. 2020) (describing appraisal
as “an insurance contract’s alternative dispute resolution process”).
And the court noted that appraisal would not dispose of any claims
or defenses. Indeed, the appraisal process—a contractual mecha-
nism agreed to by the parties in the Policy—does not entitle Positano
to judgment on its claims against Empire; the appraisal process
here will only resolve the question of the amount of loss. Thus,
“[s]o far as we can discern from [the] record, the district court did
not intend to issue an injunction” when it entered the order com-
pelling appraisal. Supreme Fuels, 689 F.3d at 1247 (Pryor, J., concur-
ring).
Our dissenting colleague, however, concludes that the ap-
praisal order is the explicit grant of an injunction because it ordered
Empire to perform an act and is enforceable via the district court’s
inherent civil contempt power. Dis. Op. at 6–7. It is true that, in
Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117 (11th Cir.
2005), we stated that, to be appealable under § 1292(a)(1), “the in-
terlocutory order appealed must have the first two elements of an
injunction,” i.e., “it must be: (1) a clearly defined and understanda-
ble directive by the court to act or to refrain from a particular ac-
tion; and (2) enforceable through contempt, if disobeyed.” Id. at
1128. But, we explained, “merely establishing that the order under
consideration is a court order commanding or preventing an ac-
tion, and enforceable by contempt, does not make it ‘an injunction’
under § 1292(a)(1).” Id. The order must also give “some or all of
the substantive relief sought in the complaint” and that “[t]he
§ 1292(a)(1) exception [to the final judgment rule] does not
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22-11059 Opinion of the Court 15
embrace orders that have no direct or irreparable impact on the
merits of the controversy.” Id. at 1128–29 (alterations in original)
(quoting Gardner, 437 U.S. at 482).
For example, an order compelling discovery contains a di-
rective by the court to act and is enforceable by contempt. See Serra
Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d 1137, 1147 (11th Cir.
2006) (explaining that one of the sanctions a district court may im-
pose under Federal Rule of Civil Procedure 37(b) is an “order treat-
ing as a contempt of court the failure to obey” a discovery order);
see also Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S.
821, 833 (1994) (noting a court’s contempt power for a party’s fail-
ure to comply with document discovery). But an order compelling
discovery is not an injunction, as while “all orders of court are man-
datory in the sense that they must be obeyed , , , [,] not all orders
of [the] court are injunctions.” See Carr v. Monroe Mfg. Co., 431 F.2d
384, 386 (5th Cir. 1970). As our predecessor court once explained,
“the requirements of a healthy legal system simply do not permit
halting the orderly process of a case in midstream to review inci-
dentally matters which cross the current of the litigation,” and
“[c]onstruing discovery orders as injunctive” would contravene
that principle. See id. (citing Cobbledick v. United States, 309 U.S. 323
(1940)). Rather, as this Court has repeatedly held, orders compel-
ling discovery are interlocutory orders that are generally not ap-
pealable. Robinson v. Tanner, 798 F.2d 1378, 1380 (11th Cir. 1986);
see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981)
(“[W]e have generally denied review of pretrial discovery orders.
. . . [I]n the rare case when appeal after final judgment will not cure
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16 Opinion of the Court 22-11059
an erroneous discovery order, a party may defy the order, permit a
contempt citation to be entered against him, and challenge the or-
der on direct appeal of the contempt ruling.” (citations omitted));
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 112–13 (2009) (“Rou-
tine appeal from disputed discovery orders would disrupt the or-
derly progress of the litigation, swamp the courts of appeals, and
substantially reduce the district court's ability to control the discov-
ery process.” (quoting C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure § 3914.23, at 123 (2d ed.1992))).
This reasoning similarly holds true here. Again turning to
the district court’s order compelling appraisal, the order, as we
have explained, did not dispose of any of the claims or defenses in
this case. Rather, it simply enforced the parties’ contractually-
agreed-to, extra-judicial mechanism to calculate the amount of loss
as to claims made under the Policy. Again, the appraisal process is
not remedial, and the result of the appraisal process does not entitle
Positano to relief or judgment on its claims against Empire related
to Positano’s claims for property insurance benefits under the Pol-
icy. We therefore respectfully disagree with the dissent’s determi-
nation that the appraisal order is an explicit grant of an injunction.5
5 Our dissenting colleague also asserts that the district court intended to invoke
the All Writs Act as a means of issuing the appraisal order, which, in his view,
is an injunction. Dis. Op. at 18–20. For a party to obtain an “All Writs Act
injunction,” which “is predicated upon some [matter other than some cause
of action] upon which a district court has jurisdiction,” the party “must simply
point to some ongoing proceeding, or some past order or judgment, the in-
tegrity of which is being threatened by someone else's action or behavior.” See
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22-11059 Opinion of the Court 17
Accordingly, we agree with the district court’s characteriza-
tion of its order and hold that the order did not explicitly grant an
injunction.6
Although we have concluded that the district court’s order
compelling appraisal is not an explicit grant of an injunction, our
analysis of whether the order is appealable under § 1292(a)(1) does
not end here. In Gulfstream Aerospace Corp. v. Mayacamas Corp., 485
U.S. 271 (1988), the Supreme Court explained that § 1292(a)(1) also
provides appellate jurisdiction over “orders that have the practical
effect of granting or denying injunctions and have ‘serious, perhaps
irreparable, consequence.’” Id. at 287–88 (quoting Carson v. Am.
Brands, Inc., 450 U.S. 79, 84 (1981)); accord Carson, 450 U.S. at 84
(“Unless a litigant can show that an interlocutory order . . . might
have a ‘serious, perhaps irreparable, consequence,’ and . . . can be
‘effectually challenged’ only by immediate appeal, the general
Klay, 376 F.3d at 1100; see also 28 U.S.C. § 1651(a). But, as we have concluded,
the appraisal order is not an injunction. And, in any event, Positano did not
seek an injunction under the All Writs Act, nor did the district court invoke
that act in issuing the appraisal order. Cf. U.S. Army Corps, 424 F.3d at 1132
(rejecting an argument that an injunction was issued under the All Writs Act
in part because the district court never invoked the All Writs Act in its order).
6 Our dissenting colleague, after concluding that the appraisal order is explic-
itly an injunction, suggests that our analysis here indicates that the district
court abused its discretion or otherwise demonstrates that Empire’s argu-
ments as to why the appraisal order should be vacated have merit. See Dis.
Op. at 9–11. We respectfully disagree. Our analysis here simply goes to show
why the district court’s appraisal order is not an explicit grant of an injunction.
We do not opine on any of Empire’s arguments on the merits, i.e., on whether
the district court erred in entering the appraisal order.
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18 Opinion of the Court 22-11059
congressional policy against piecemeal review will preclude inter-
locutory appeal.”); Admin. Mgmt. Servs., Ltd. v. Royal Am. Managers,
Inc., 854 F.2d 1272, 1278–79 (11th Cir. 1988). In United States v. City
of Hialeah, 140 F.3d 968 (11th Cir. 1998), we summarized the re-
quirements laid out in Carson and Gulfstream for appellate jurisdic-
tion of an interlocutory order under § 1292(a)(1) as follows: (1) “if
the relief sought is not actually an injunction, then it must have the
practical effect of an injunction”; and (2) “the appellant must show
that the interlocutory order of the district court ‘might have a seri-
ous, perhaps irreparable, consequence, and that the order can be
effectually challenged only by immediate appeal.’” Id. at 973 (quot-
ing Carson, 450 U.S. at 84); accord Roberts v. St. Regis Paper Co., 653
F.2d 166, 170 (5th Cir. Unit B Aug. 1981); United States v. Bowman,
341 F.3d 1228 (11th Cir. 2003). Thus, “[i]f relief may be obtained
upon review after trial, the parties are not considered to have suf-
fered irreparable consequences.” Admin. Mgmt. Servs., 854 F.2d at
1279.
We have not decided the issue of whether an order compel-
ling appraisal, and staying the proceedings pending appraisal, satis-
fies the requirements set forth by Carson—and summarized by us
in City of Hialeah. See City of Hialeah, 140 F.3d at 973; Carson, 450
U.S. at 84. And applying those requirements, we conclude that nei-
ther component of City of Hialeah’s second requirement is satisfied
by the order compelling appraisal in this case. Indeed, the appraisal
order does not have some “serious, perhaps irreparable conse-
quence.” See id. The district court’s order does not entitle Positano
to judgment on its claims against Empire. And while the appraisal
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22-11059 Opinion of the Court 19
process is binding on the parties as to the amount of the loss, Empire
can still pursue its defenses of coverage denials as a whole and to
specific buildings owned by Positano in the district court once the
appraisal process concludes. See State Farm Fire & Cas. Co. v. Licea,
685 So. 2d 1285, 1287–88 (Fla. 1996). And if Empire is unsuccessful
in the district court following the conclusion of the appraisal pro-
ceedings, it can still obtain relief upon review after trial by appeal-
ing any final judgment against it—meaning that the order is not
effectively challengeable only by immediate appeal.7 See Admin.
7 We respectfully disagree with our dissenting colleague that the City of Hialeah
requirements are limited only to interlocutory orders that have the practical
effect of denying an injunction. See Dis. Op. at 27–29. First, our precedent in
City of Hialeah did not make such a distinction in setting forth the require-
ments. See City of Hialeah, 140 F.3d at 973. Additionally, the Supreme Court,
in concluding that an “analogous” provision to § 1292(a)(1)—28 U.S.C.
§ 1253—encompassed orders with the “practical effect” of granting or denying
an injunction, rejected the appellees’ argument that “an order denying an in-
junction (the situation in Carson) and an order granting an injunction (the sit-
uation here) should be treated differently.” Abbot, 138 S. Ct. at 2320–21. The
Supreme Court noted that, not only did the appellees “offer no convincing
reason for” drawing such a distinction, “[n]o authority supports their argu-
ment.” Id. at 2321. The Court explained that “[t]he language of §§ 1253 and
1292(a)(1) makes no such distinction” and that “the ‘practical effect’ analysis
applies to the ‘granting or denying’ of injunctions.” Id. (citing Gulfstream, 485
U.S. at 287–88). The Court also reasoned that “appellees’ suggested distinction
would put appellate courts in an awkward position . . . [and] needlessly com-
plicate appellate review.” Id. The Court’s reasoning in Abbott thus supports
our conclusion that the City of Hialeah requirements are not limited to inter-
locutory orders that have the practical effect of denying an injunction.
Moreover, we are bound to follow our prior binding precedent unless and un-
til it is overruled by this Court en banc or the Supreme Court. United States v.
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20 Opinion of the Court 22-11059
Mgmt. Servs., 854 F.2d at 1279 (“If relief may be obtained upon re-
view after trial, the parties are not considered to have suffered ir-
reparable consequences.”); see also Bowman, 431 F.3d at 1237
(“What makes an issue effectively unreviewable on appeal is the in-
sufficiency of the remedy after final judgment.” (quoting United
States v. One Parcel of Real Prop. With Bldgs., Appurtenances & Im-
provements, 767 F.2d 1495, 1497 (11th Cir. 1985))).
While Empire raises out-of-circuit authority to argue that
the order compelling appraisal is rooted in an action for specific
performance of a contract that is treated as an injunction, see, e.g.,
Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1222–23 (10th Cir. 2009);
Hayes v. Allstate Ins. Co., 722 F.2d 1332, 1333 (7th Cir. 1983), we do
not find those cases persuasive here. In Westar Energy, the Tenth
Circuit found that the district court’s order, in which the court or-
dered the appellant to pay the appellee’s legal expenses and ex-
pressly invoked its equitable powers, was a preliminary injunction.
552 F.3d at 1222. The Tenth Circuit stated that “[a]n action seeking
to enforce the right to advancement [of legal fees] is an action for
specific performance of a contract,” that specific performance “is
an equitable remedy,” and that “an interim grant of specific relief
is a preliminary injunction.” Id. at 1222–23. And the Tenth Circuit
declined to apply Carson’s “serious, perhaps irreparable,
Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). We therefore are bound to
apply the City of Hialeah requirements in determining whether we can review
the order granting the motion to compel appraisal in this case.
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22-11059 Opinion of the Court 21
consequence” requirement because it construed that requirement
as applying only “in situations where orders have the practical ef-
fect of denying an injunction.” Id. at 1223 (“[O]rders which them-
selves grant or deny injunctive relief are appealable as injunctions
under 28 U.S.C. § 1292(a)(1) without the Carson showing.” (citing
Hutchinson v. Pfeil, 105 F.3d 566, 569 (10th Cir. 1997))).
But unlike Westar Energy, the district court in this case did
not order appraisal based on its “equitable powers.” Moreover, the
“relief” granted by the district court was not enforcement of a right
to advancement of fees but an order sending the parties to a con-
tractually-anticipated alternative dispute resolution process that
would not dispose of the underlying claims or defenses in the case.
Further, even if the Tenth Circuit correctly determined that the or-
der in Westar Energy was substantively a preliminary injunction
such that Carson’s “serious, perhaps irreparable, consequence” re-
quirement did not apply, see id., for the reasons explained above,
we conclude that the district court’s order compelling appraisal did
not explicitly grant an injunction. Therefore, we are bound to ap-
ply the City of Hialeah requirements of the interlocutory order hav-
ing the practical effect of an injunction and having “serious, per-
haps irreparable, consequence.” See 140 F.3d at 973. Thus, we do
not find Westar Energy dispositive here.8
8 Because we conclude that the order compelling appraisal in this case did not
explicitly grant an injunction, we also decline to follow the Tenth Circuit’s
unpublished decision of Fireman’s Fund Insurance Co. v. Steele Street Ltd. II, No.
19-1096, 2022 WL 39392 (10th Cir. Jan. 5, 2022), in which the Tenth Circuit
applied Westar Energy to conclude that the Carson requirements were
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22 Opinion of the Court 22-11059
Additionally, in Hayes, the Seventh Circuit provided no anal-
ysis of why it had appellate jurisdiction under § 1292(a)(1) to review
the order; the court simply concluded that it did. 722 F.2d at 1333.
Given the lack of jurisdictional analysis by the Seventh Circuit, we
decline to follow Hayes. And notably, Judge Posner dissented in
Hayes on the basis that there was no jurisdiction to hear an inter-
locutory appeal of an order compelling appraisal. See id. at 1336
(Posner, J., dissenting). In doing so, Judge Posner specifically noted
that there was no possibility of irreparable harm from the district
court’s order because any delay to the plaintiffs’ lawsuit while ap-
praisal was ongoing “would be trivial, and certainly could not harm
them irreparably.” Id. at 1336–37 (citing Carson, 450 U.S. at 84).
And, if the plaintiffs disagreed with the results of the appraisal,
“they could—just as soon as the district court entered its final judg-
ment on the basis of the appraisal—file the same appeal they have
filed from the stay; and if we then reversed the district court’s judg-
ment the appraisal would have caused the plaintiffs no harm at all.”
Id. We agree with Judge Posner’s characterization of the lack of
irreparable harm to a party that is ordered to appraisal. And, under
City of Hialeah, some serious or irreparable consequence is required
for an interlocutory order to be appealable under the injunction
analogy theory. 140 F.3d at 973. Simply put, the district court’s
interlocutory order compelling appraisal—which, again, did not ex-
plicitly grant an injunction—does not implicate such serious or
inapplicable and that it had jurisdiction over an order enforcing an insurance
policy’s appraisal provision under § 1292(a)(1). Id. at *4.
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22-11059 Opinion of the Court 23
irreparable consequence to a party as to satisfy City of Hialeah’s re-
quirements.
As a final note, we recognize that Florida courts do not re-
quire a party seeking to enforce an appraisal provision in an insur-
ance policy to file a motion for injunctive relief. See People’s Tr. Ins.
Co. v. Nowroozpour, 277 So. 3d 135, 136 (Fla. Dist. Ct. App. 2019)
(“After a homeowner has filed suit, it may be more traditional for
an insurer to move to compel an appraisal to seek enforcement of
the policy provisions . . . .”); see, e.g., People’s Tr. Ins. Co. v. Mar-
zouka, 320 So. 3d 945 (Fla. Dist. Ct. App. 2021); First Protective Ins.
Co. v. Colucciello, 276 So. 3d 456 (Fla. Dist. Ct. App. 2019); People’s
Tr. Ins. Co. v. Tracey, 251 So.3d 931 (Fla. Dist. Ct. App. 2018). Flor-
ida courts grant motions to compel appraisal when “the parties
have agreed to [appraisal] and the court entertains no doubts that
such an agreement was made.” Marzouka, 320 So. 3d at 947–48
(emphasis removed) (quoting Preferred Mut. Ins. Co. v. Martinez, 643
So. 2d 1101, 1103 (Fla. Dist. Ct. App. 1994)).
Accordingly, because the district court’s interlocutory order
compelling appraisal and staying the proceedings did not explicitly
grant an injunction and does not satisfy all the requirements set
forth by our decisions in Administrative Management Services and
City of Hialeah, it is not appealable under § 1292(a)(1). We therefore
lack appellate jurisdiction to review the order.
B. Whether an Order Compelling Appraisal Is Appealable
Under the FAA
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24 Opinion of the Court 22-11059
We now turn to the issue of whether the order compelling
appraisal in this case—which was ordered based on an appraisal
provision in an insurance policy—is appealable under the FAA.
The FAA provides that “[a] written provision in any . . . contract
evidencing a transaction involving commerce to settle by arbitra-
tion a controversy thereafter arising out of such contract or trans-
action, . . . shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. The FAA governs the appealability of an
order ruling on a motion to compel arbitration. Under 9 U.S.C.
§ 16(a)(3), an appeal may be taken from “a final decision with re-
spect to an arbitration.” Conversely, under § 16(b)(1) and (3), an
appeal may not be taken from an interlocutory order that grants a
stay of any action under 9 U.S.C. § 3—providing for stays of pro-
ceedings where an issue in the suit is referable to arbitration—or
that compels arbitration under 9 U.S.C. § 206.
Federal policy behind the FAA favors arbitration agree-
ments, Wasyl, Inc. v. First Bos. Corp., 813 F.2d 1579, 1582 (9th Cir.
1987), and the FAA creates a “body of federal substantive law of
arbitrability, applicable to any arbitration agreement within the
coverage of the Act,” Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983). But Congress did not define the term
“arbitration” in the FAA. Salt Lake Trib. Publ’g Co. v. Mgmt. Plan.,
Inc., 390 F.3d 684, 688 (10th Cir. 2004).
Here, we are presented with an order granting a party’s mo-
tion to compel appraisal based on an appraisal provision in an
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22-11059 Opinion of the Court 25
insurance policy. We have not decided the question of whether an
appellate court looks to state or federal law in determining whether
an appraisal process falls within the definition of “arbitration” for
purposes of the FAA, nor has the Supreme Court directly addressed
the question. But see Advanced Bodycare Sols., LLC v. Thione Int’l, Inc.,
524 F.3d 1235, 1239–40 (11th Cir. 2008) (articulating “a test for re-
solving whether a particular dispute resolution procedure is FAA
‘arbitration’”).
But we need not decide this issue because even assuming for
the sake of argument that the order compelling appraisal here fell
within the definition of arbitration for purposes of the FAA, we still
lack appellate jurisdiction over the district court’s order. Section
16(a)(3) allows for an appeal from “a final decision with respect to
an arbitration that is subject to this title” and is interpreted “accord-
ing to the ‘well-developed and longstanding meaning’ of a ‘final de-
cision.’” Managed Care Advisory Grp., LLC v. CIGNA Healthcare, Inc.,
939 F.3d 1145, 1154 (11th Cir. 2019) (quoting Green Tree Fin. Corp.-
Ala. v. Randolph, 531 U.S. 79, 86 (2000)). And “[a] final decision
‘ends the litigation on the merits and leaves nothing more for the
court to do but execute the judgment.’” Id. (quoting Green Tree,
531 U.S. at 86). For the reasons explained above, the district court’s
order compelling appraisal and staying the case pending appraisal
is not a final decision. And because § 16(b)(3) specifically states that
“an appeal may not be taken from an interlocutory order . . . com-
pelling arbitration”—and § 16(b)(1) likewise makes “an interlocu-
tory order . . . granting a stay” pending referral of arbitrable issues
to arbitration not immediately appealable—we lack appellate
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26 Opinion of the Court 22-11059
jurisdiction over the order compelling appraisal even if appraisal
were to be considered arbitration for purposes of the FAA.
IV. CONCLUSION
For the reasons discussed, we conclude that the district
court’s order compelling appraisal and staying the proceedings
pending appraisal is an interlocutory order that is not immediately
appealable under either 28 U.S.C. § 1292(a)(1) or the Federal Arbi-
tration Act. We therefore dismiss the appeal for lack of appellate
jurisdiction.
APPEAL DISMISSED.
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22-11059 T JOFLAT, J., Dissenting 1
TJOFLAT, Circuit Judge, dissenting:
I dissent from the Majority’s dismissal of these consolidated
appeals for lack of jurisdiction under § 1292(a)(1). The Majority
holds that we lack jurisdiction because the injunction that the Dis-
trict Court entered (the “Appraisal Order”) is not an injunction as
that word is used in § 1292(a)(1) and thus is not reviewable. Alt-
hough the language of the Appraisal Order plainly reveals an in-
junction, the Majority holds, in effect, that this does not matter.
Instead—according to the Majority—what matters is that the ap-
pellant, Empire Indemnity (“Empire”), has not shown that the ap-
pellee, Positano Place (“Insured”),1 was entitled to the injunction.
In other words, because Insured failed to make out a case for in-
junctive relief, the Appraisal Order is not an injunction.
I dissent for two main reasons. First, the Appraisal Order is
an “interlocutory order” and an “injunction” as those words appear
in § 1292(a)(1) because it both commands Empire to do something
and is enforceable by contempt.2 It is therefore reviewable. Sec-
ond, the District Court had the inherent power to issue the
1 I refer to the appellees in these consolidated appeals collectively as “Insured.”
2 28 U.S.C. § 1292(a)(1) states:
Except as provided in subsections (c) and (d) of this section, the
courts of appeals shall have jurisdiction of appeals from:
[i]nterlocutory orders of the district courts . . . granting, con-
tinuing, modifying, refusing or dissolving injunctions, or refus-
ing to dissolve or modify injunctions, except where a direct re-
view may be had in the Supreme Court.
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2 T JOFLAT, J., Dissenting 22-11059
injunction under the All Writs Act.3 The Majority’s opinion gives
no indication that the Majority even considered whether the Dis-
trict Court’s inherent power provided the authority to issue the or-
der. The Majority was nearsighted. As its opinion indicates, it
looked only to Insured’s complaint for the source of the District
Court’s authority. Specifically, it looked for a cause of action seek-
ing relief in the form of the Appraisal Order and found nothing.
Since there was nothing to support the issuance of the Appraisal
Order, it could not be an injunction as the term is used in
§ 1292(a)(1), and we could not entertain these appeals.
I organize my dissent as follows. Part I presents the injunc-
tion, shows that the injunction is reviewable under § 1292(a)(1), and
sets the stage for the Majority’s focus on Insured’s complaint as the
source of authority for the District Court’s issuance of the
3 As explained below in Section II.C., the District Court issued the Appraisal
Order pursuant to its inherent power to manage a case to final judgment. That
power is acknowledged in § 14 of the Judiciary Act of 1789:
And be it further enacted, That all the before-mentioned courts
of the United States, shall have power to issue writs of scire
facias, habaeas corpus, and all other writs not specially provided
for by statute, which may be necessary for the exercise of their
respective jurisdictions, and agreeable to the principles and us-
ages of law.
ch. 20, § 14, 1 Stat. 73, 81. Section 14 was codified in the All Writs Act, 28
U.S.C. § 1651(a). The Appraisal Order is a permanent injunction in the sense
that the District Court did not reserve its decision on the applicability of the
insurance policy’s appraisal provision. The order compelling an appraisal was
the court’s final word on the application of the appraisal provision.
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22-11059 T JOFLAT, J., Dissenting 3
Appraisal Order. Part II centers on what appears to be the Major-
ity’s reasons for determining that the Appraisal Order is not an in-
junction. First, the Insured’s complaint lacked a cause of action for
the Appraisal Order. Second, the District Court failed to comply
with the procedural rules governing a traditional interlocutory in-
junction. Notably, what the Insured sought was not based on its
complaint but on the need for an appraisal so that the case could
proceed to trial. I explain that the District Court had the inherent
power, now codified in the All Writs Act, to issue this order. Part
III demonstrates the impracticality of the Majority’s decision to
deny Empire § 1292(a)(1) review of the Appraisal Order because it
can instead obtain § 1291 review of the Appraisal Order by appeal-
ing the final judgment after the trial of the case. Part IV explains
why the Majority’s additional theory for dismissing these appeals is
irrelevant, in part because the theory applies in appeals from the
denial of an interlocutory injunction, not in the grant of an inter-
locutory injunction as in the instant cases. Part V posits that the
Majority’s analysis of the jurisdictional issue presented is unwise
from the standpoint of judicial administration and this Court’s re-
lationship with district courts. Part VI briefly concludes.
I.
A.
I begin my discussion by reciting the operative provisions of
the District Court’s order.
3. Plaintiff’s Motion to Compel Appraisal and
Stay Proceedings is GRANTED. The parties
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4 T JOFLAT, J., Dissenting 22-11059
are ORDERED to expeditiously conduct an
appraisal as prescribed by the appraisal provi-
sions of the Policy. The appraisal award will
delineate between the specific coverages of-
fered under the Policy for each unique build-
ing.
4. The case is STAYED pending appraisal, and
the Clerk must add a stay flag to the file.
5. The parties are DIRECTED to file a joint
report on the status of appraisal on or before
June 8, 2022, and every ninety days thereaf-
ter until appraisal has ended.
6. Within seven days of appraisal ending, the par-
ties are DIRECTED to jointly notify the
Court of (a) what issues, if any, remain for
the Court to resolve; (b) whether the stay
needs to be lifted; and (c) how this action
should proceed, if at all.
7. If the parties cannot agree on the selection
of appraisers and an umpire, they must notify
Judge McCoy by March 24, 2022. Any dispute
over the selection of appraisers and an umpire
is REFERRED to Judge McCoy to conduct a
conference and issue any appropriate order.
All parties must ATTEND the conference
as directed by Judge McCoy.4
4 Record, vol. I, no. 60, at 10 (citations omitted).
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22-11059 T JOFLAT, J., Dissenting 5
The order the District Court issued is an injunction because
(1) it commands Empire to do something (engage in an appraisal)
and (2) it is enforceable under the District Court’s inherent civil
contempt power. See Nken v. Holder, 556 U.S. 418, 428,
129 S. Ct. 1749, 1757 (2009) (“[An injunction] is a means by which
a court tells someone what to do or not to do. When a court em-
ploys ‘the extraordinary remedy of injunction,’ . . . it directs the
conduct of a party, and does so with the backing of its full coercive
powers.” (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312,
102 S. Ct. 1798, 1803 (1982))); Alabama v. U.S. Army Corps of Eng’rs,
424 F.3d 1117, 1128 (11th Cir. 2005) (defining an injunction as “(1) a
clearly defined and understandable directive by the court to act or
refrain from a particular action; and (2) enforceable through con-
tempt, if disobeyed”); Injunction, Black’s Law Dictionary (11th ed.
2019) (defining “injunction” as “[a] court order commanding or
preventing an action”); 2 Joseph Story, Commentaries on Equity Ju-
risprudence § 861, at 57 (9th ed. 1866) (“A Writ of Injunction may be
described to be a judicial process, whereby a party is required to do
a particular thing, or to refrain from doing a particular thing, ac-
cording to the exigency of the writ.”); 1 Howard C. Joyce, A Treatise
on the Law Relating to Injunctions § 1, at 2 (1909) (“In a general sense,
every order of a court which commands or forbids is an injunction;
but in its accepted legal sense, an injunction is a judicial process or
mandate operating in personam by which, upon certain established
principles of equity, a party is required to do or refrain from doing
a particular thing.”).
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6 T JOFLAT, J., Dissenting 22-11059
To determine whether an order is an injunction, “courts
look not to terminology, but to ‘the substantial effect of the order
made.’” McCoy v. La. State Bd. of Educ., 345 F.2d 720, 721 (5th Cir.
1965) (per curiam) (quoting Ettelson v. Metro. Life Ins. Co.,
317 U.S. 188, 192, 63 S. Ct. 163, 165 (1942).5 We take a “functional
approach, looking not to the form of the district court’s order but
to its actual effect.” Birmingham Fire Fighters Ass’n 117 v. Jefferson
Cnty., 280 F.3d 1289, 1293 (11th Cir. 2002) (quoting Sierra Club v.
Marsh, 907 F.2d 210, 213 (1st Cir. 1990)); see also Gautreaux v. Chi.
Hous. Auth., 178 F.3d 951, 956–57 (7th Cir. 1999) (“This court has
repeatedly held that it will look beyond labels such as ‘clarification’
or ‘modification’ to consider the actual effect of the order.”).
The effect of the Appraisal Order will be to compel Empire
to submit to an appraisal that will be introduced at the trial to prove
the loss Insured sustained because of the catastrophe it insured
against. This satisfies the first element of an injunction: an order
commanding a party to perform an act.
As to the second element, the order is enforceable via the
District Court’s inherent civil contempt power.6 How could it not
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to October 1, 1981.
6 The Judiciary Act of 1789 recognized the courts’ contempt power in § 17:
“And it be further enacted, That all the said courts of the United States shall have
power . . . to punish by fine or imprisonment, at the discretion of said courts,
all contempts of authority in any cause or hearing before the same.” ch. 20,
§ 17, 1 Stat. 73, 83.
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22-11059 T JOFLAT, J., Dissenting 7
be? If Empire refuses to participate in an appraisal, Insured will
move the District Court for an order requiring Empire to show
cause for its refusal.7 Insured’s motion will simply cite the Ap-
praisal Order and allege that Empire refuses to engage in an ap-
praisal as ordered. Accepting the allegation as true, the District
Court will enter an order requiring Empire to show cause for its
refusal. At the show cause hearing, Empire will be obliged to pre-
sent a legal excuse for its refusal or face a civil contempt adjudica-
tion and a sanction for its refusal (probably a daily fine until Empire
purged its contempt and submitted to an appraisal). If the District
Court reduces an adjudication and sanction to a judgment, Empire
could appeal that judgment to this court under 28 U.S.C. § 1291.8
In sum, taking the “functional approach” former Chief Judge
Ed Carnes took in Birmingham Fire Fighters Ass’n 117, we must treat
the Appraisal Order as an injunction because it commands Empire
to perform an act, and it is enforceable pursuant to the District
Court’s contempt power.
B.
In holding that the Appraisal Order is not an injunction, the
Majority relies in part on the parties’ responses to our request for
7 In Part III, I describe what will take place in the District Court after we dismiss
this appeal for lack of jurisdiction if Empire refuses to engage in the ordered
appraisal.
8 28 U.S.C. § 1291 states in pertinent part: “The courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the district courts of the
United States . . . .”
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8 T JOFLAT, J., Dissenting 22-11059
submissions on our jurisdiction under § 1292(a)(1) and the parties’
briefs.9 Ante at 3, 12–14. Empire insisted that the Appraisal Order
was a reviewable interlocutory order under the statute. Insured
disagreed and argued that the Appraisal Order did not involve a
claim for injunctive relief. Neither side, however, considered
whether the District Court may have derived its authority to issue
the Appraisal Order from a source other than Insured’s complaint,
to wit: the District Court’s inherent power. So, the Majority joined
the parties in focusing on the Insured’s complaint for the source of
the District Court’s authority to issue the Appraisal Order and thus
in determining whether we had § 1292(a)(1) jurisdiction. The alle-
gations of Insured’s complaint (and Empire’s response) therefore
prescribed the parameters of the District Court’s power to act.
As indicated in Part II below, the Majority found nothing in
the complaint that would support an order requiring Empire to
submit to an appraisal. Moreover, the Majority strongly implies
that the District Court, in entering the Appraisal Order, abused its
discretion in disregarding altogether the standards traditionally
governing the issuance of injunctions. For these appeals to
9 In deciding whether we had § 1292(a)(1) jurisdiction on the theory that the
Appraisal Order was an injunction, we were obligated to consider the record
sua sponte, “notwithstanding the contentions of the parties. That is so because
subject-matter jurisdiction underlies a court’s power to hear a case.” DeRoy v.
Carnival Corp., 963 F.3d 1302, 1311 (11th Cir. 2020) (citation omitted); see also
Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S. Ct. 641, 648 (2012) (“When a re-
quirement goes to subject-matter jurisdiction, courts are obligated to consider
sua sponte issues that the parties have disclaimed or have not presented.”).
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22-11059 T JOFLAT, J., Dissenting 9
proceed, Empire—bearing the burden of establishing our jurisdic-
tion—had to establish that the District Court did not abuse its dis-
cretion.10 Empire has failed to do that; hence, the dismissal of these
appeals.
II.
A.
According to the Majority, the District Court’s issuance of
the Appraisal Order was an abuse of discretion for the following
reasons:
First, [Insured] did not move for an injunction, nor did it
pursue any claim for injunctive relief in its operative com-
plaint. Rather, [Insured] simply moved to compel an ap-
praisal based on the appraisal provision in the Policy that
was agreed to by the parties. Second, in granting the mo-
tion, the district court did not make the findings of fact and
conclusions of law that normally support an order granting
injunctive relief. Nor did the district court comply with the
requirements set forth in Federal Rule of Civil Procedure
65(d). Cf. Supreme Fuels Trading FZE v. Sargeant, 689 F.3d
1244, 1247 (11th Cir. 2012) (Pryor, J., concurring) (“‘[T]he
absence of any semblance of effort by the [d]istrict [c]ourt to
comply with Rule 65(d)’ is evidence that the district court did
not intend to enter ‘an order granting an injunction.’”
10 If Empire established that the District Court did not abuse its discretion, thus
giving us § 1292(a)(1) jurisdiction, how would Empire prevail on the merits,
having established that the District Court did not abuse its discretion in grant-
ing injunctive relief?
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10 T JOFLAT, J., Dissenting 22-11059
(quoting Gunn v. Univ. Comm. to End the War in Viet Nam, 399
U.S. 383, 389 n.4 (1970))).
Ante at 12–13 (emphasis added)11 (footnote omitted) (other cita-
tions omitted).
With these recitals, the Majority demonstrates that Empire’s
appeal has merit—the Appraisal Order should be vacated on the
ground that the District Court abused its discretion in entering it.
The District Court abused its discretion because its decision to is-
sue the Appraisal Order was based on errors of law: it granted relief
that Insured’s complaint did not seek, and it compounded that er-
ror by failing to support the Appraisal Order with findings of fact
and conclusions of law and by failing to comply with Rule 65(d).
But instead of exercising § 1292(a)(1) jurisdiction and vacating the
Appraisal Order, we use the District Court’s errors as the basis for
dismissing these appeals for want of jurisdiction. And we do so
notwithstanding that the Appraisal Order is an injunction.
I am aware of no precedent for this disposition.12 What is
the warrant for it? A desire to avoid opening the appellate
11 I emphasize “evidence” because that is all the noncompliance is, a piece of
circumstantial evidence that, when considered in isolation, proves nothing—
especially in the face of the coercive (injunctive) provisions the District Court
placed in the Appraisal Order. To determine whether the Appraisal Order is
an injunction, we look to what the issuing court did and to the “substantial
effect” of its order, McCoy, 345 F.2d at 721, which was to require Empire to
engage in an appraisal.
12 As I explain in Part IV, none of the cases the Majority cites support this dis-
position.
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22-11059 T JOFLAT, J., Dissenting 11
“floodgate” to the review of “orders that have no direct or irrepa-
rable impact on the merits of the controversy”?13 More about all of
that later. For now, I will follow the Majority’s lead and decide
whether we lack jurisdiction because the District Court lacked a
lawful basis for issuing the injunction. That is, for purposes of dis-
cussion, I will assume that our jurisdiction depends on whether
Empire can show that the District Court’s issuance of the injunc-
tion was not an abuse of discretion. In carrying out this exercise, I
will dissect the portions of the Majority’s opinion quoted above for
the purpose of interlineating and explaining what I believe the Ma-
jority is actually saying.
B.
Under the Majority’s logic, Empire cannot appeal the Ap-
praisal Order because Insured’s complaint did not allege a cause of
action (for an appraisal order), i.e., a “traditional” injunction. See
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir. 2004)
(“[T]raditional injunctions are predicated on [a] cause of action
. . . .”). Although its complaint did not state a cause of action for
an order compelling Empire to engage in an appraisal, Insured
nonetheless “moved [the District Court] to compel an appraisal
based on the appraisal provision in the Policy that was agreed to by
the parties,” ante at 12, and the District Court granted this motion.
But the District Court failed to obey the law: it “did not make the
findings of fact and conclusions of law that normally support an
13 Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 480, 98 S. Ct. 2451, 2453
(1978).
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12 T JOFLAT, J., Dissenting 22-11059
order granting injunctive relief.” Ante at 12 (citing Klay, 376 F.3d at
1097). “Nor did the district court . . . comply with the requirements
set forth in Federal Rule of Civil Procedure 65(d).” Ante at 12–13
(citing Sargeant, 689 F.3d at 1244 (Pryor, J. concurring)).
Regarding the District Court’s failure to make the findings
of fact and conclusions of law that normally support an order grant-
ing an injunction, the Majority is referring to two things: (1) Fed-
eral Rule of Civil Procedure 52(a),14 and (2) the standards articu-
lated in Klay that are necessary for compliance with Rule 52(a)(2):
A district court may grant injunctive relief only if the
moving party shows that: (1) it has a substantial like-
lihood of success on the merits; (2) irreparable injury
will be suffered unless the injunction issues; (3) the
14 Rule 52(a) states in relevant part:
(a) FINDINGS AND CONCLUSIONS.
(1) In General. In an action tried on the facts without a
jury or with an advisory jury, the court must find the facts spe-
cially and state its conclusions of law separately. The findings
and conclusions may be stated on the record after the close of
the evidence or may appear in an opinion or a memorandum
of decision filed by the court. Judgment must be entered un-
der Rule 58.
(2) For an Interlocutory Injunction. In granting or refus-
ing an interlocutory injunction, the court must similarly state
the findings and conclusions that support its action.
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22-11059 T JOFLAT, J., Dissenting 13
threatened injury to the movant outweighs whatever
damage the proposed injunction may cause the op-
posing party; and (4) if issued, the injunction would
not be adverse to the public interest.
Ante at 12 (quoting Klay, 376 F.3d at 1097).
In quoting this language, the Majority focuses on the show-
ing the District Court should have required Insured to make to ob-
tain a preliminary injunction15—not the traditional injunction the
Majority believes Insured should have pleaded in its complaint. Ac-
cording to the Supreme Court, “[t]he purpose of a preliminary in-
junction is merely to preserve the relative positions of the parties
until a trial on the merits can be held.” Univ of Texas v. Camenisch,
451 U.S 390, 395, 101 S. Ct. 1830, 1834 (1981).16
15 The “factors [quoted in the above text] are the elements for receiving a pre-
liminary injunction.” Klay, 376 F.3d at 1097.
16 The Supreme Court elaborated on this point:
Given this limited purpose, and given the haste that is often
necessary if those positions are to be preserved, a preliminary
injunction is customarily granted on the basis of procedures
that are less formal and evidence that is less complete than in
a trial on the merits. A party thus is not required to prove his
case in full at a preliminary-injunction hearing[,] and the find-
ings of fact and conclusions of law made by a court granting a
preliminary injunction are not binding at trial on the merits.
In light of these considerations, it is generally inappropriate for
a federal court at the preliminary-injunction stage to give a fi-
nal judgment on the merits.
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14 T JOFLAT, J., Dissenting 22-11059
To obtain a preliminary injunction in this case, Insured
would have to show that it would likely succeed on the merits of a
cause of action asserted in its complaint, i.e., a cause of action pray-
ing for an appraisal order. Insured did not plead a cause of action
for an appraisal, though. It did not because it wasn’t seeking a pre-
liminary injunction so that the status quo ante could be maintained
until a trial on the merits could be held. Thus, the District Court’s
failure to make the findings and conclusions the Majority quotes
from Klay is entirely irrelevant.17
I also disagree with the Majority regarding the District
Court’s compliance with Rule 65(d). A failure to meet the specific-
ity requirements of Rule 65(d) would not deprive our Court of ju-
risdiction over the Appraisal Order. See Abbott v. Perez, 138 S. Ct.
2305, 2321, 201 L. Ed 2d 714 (2018). The Supreme Court has “never
suggested that a failure to meet the specificity requirements of Rule
65(d) would ‘deprive the Court of jurisdiction.’” Id. (quoting Gunn
v. Univ. Comm. to End War in Viet Nam, 399 U.S. 383, 389 n. 4, 90 S.
Camensich, 451 U.S. at 395, 101 S. Ct. at 1834 (citations omitted).
17 As an aside, it should go without saying that trial judges issue interlocutory
injunctions on many occasions during the litigation of a case for purposes un-
related to providing a remedy for a cause of action alleged in the complaint.
And they do so without issuing findings of fact and conclusions of law or a
written order containing Rule 65(d)’s requirements. If the injunction is ap-
pealed, the appellate court may affirm because the record of the proceeding
implies the necessary findings and conclusions. If the record does not enable
meaningful appellate review, then the appellate court may vacate the injunc-
tion.
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22-11059 T JOFLAT, J., Dissenting 15
Ct. 2013 (1970)).18 Rather, “it would be odd to hold that there can
be no appeal in such a circumstance” because “[w]here a vague in-
junction does not comply with Rule 65(d), the aggrieved party has
a particularly strong need for appellate review.” Id. at 2321. That
is, when a district court neglects to provide the necessary clarifica-
tion mandated by Rule 65(d), thereby leaving the party uncertain
about the court’s commands, that party should have the option to
seek our review.
But even if we entertain the Majority’s notion that Rule
65(d) has relevance to our jurisdiction, the Appraisal Order has fully
18 The Majority’s reliance on Supreme Fuels Trading FZE v. Sargeant,
689 F.3d 1244, 1247 (11th Cir. 2012) (Pryor, J. concurring) (quoting Gunn v.
Univ. Comm. to End the War in Viet Nam, 399 U.S. 383, 389 n.4, 90 S. Ct. 2013
(1970)), is misplaced because Gunn was distinguished by Abbott v. Perez,
138 S. Ct. 2305, 201 L. Ed. 2d 714 (2018).
[A]s explained in Gunn v. University Comm. to End War in Viet
Nam, 399 U.S. 383, 389, n. 4, 90 S. Ct. 2013, 26 L.Ed.2d 684
(1970), we have never suggested that a failure to meet the spec-
ificity requirements of Rule 65(d) would “deprive the Court of
jurisdiction under § 1253.”
A contrary holding would be perverse. Rule 65(d) protects
the party against which an injunction is issued by requiring
clear notice as to what that party must do or refrain from do-
ing. Where a vague injunction does not comply with Rule
65(d), the aggrieved party has a particularly strong need for ap-
pellate review. It would be odd to hold that there can be no
appeal in such a circumstance.
Abbott, 138 S. Ct. at 2321.
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16 T JOFLAT, J., Dissenting 22-11059
satisfied its requirements. Rule 65(d) states that all orders granting
injunctions must: “(A) state the reasons why it issued; (B) state its
terms specifically; and (C) describe in reasonable detail—and not
by referring to the complaint or other document—the act or acts
restrained or required.” The record and Appraisal Order itself re-
veal precisely why the order issued, the order states its terms spe-
cifically, and it informs Empire of the action the District Court ex-
pected it to take. Rule 65(d)’s purpose is to “protect[] the party
against which an injunction is issued by requiring clear notice as to
what that party must do or refrain from doing.” Abbott, 138 S. Ct.
at 2321. There is not a shadow of a doubt about what Empire is to
do. It is crystal clear. And if Empire finds it is unable to compre-
hend the Appraisal Order’s requirements, it can ask the District
Court for clarification, a customary practice within trial courts.
To summarize, the District Court did not abuse its discretion
in issuing the Appraisal Order. The Majority’s analysis of the Dis-
trict Court’s action focuses on whether the Court based its decision
on Insured’s complaint. Insured did not move for the Appraisal Or-
der based on a cause of action in its complaint. The Majority says
Insured failed to establish the requirements for a preliminary in-
junction, but Insured didn’t seek a preliminary injunction. A pre-
liminary injunction would have restored the parties to the status
quo ante, which would not have benefitted Insured. Insured
wanted an order granting its contract right to an appraisal.
The Majority’s focus on Rule 52(a)(2) is irrelevant because
the facts are in granite: the insurance policy gives Insured an
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22-11059 T JOFLAT, J., Dissenting 17
unequivocal right to an appraisal, and Empire resists being ordered
to submit to one. As for Rule 65(d), we are bound by Supreme
Court precedent affirming its irrelevance to our jurisdiction, and
regardless, the Appraisal Order contains all that Rule 65(d) re-
quires.
C.
The Majority is correct in stating that Insured’s complaint
did not seek an appraisal order based on a cause of action asserted.
But the Majority fails to consider whether the District Court issued
the Appraisal Order in the exercise of a district court’s inherent
power. Insured was seeking appraisal relief based solely on its in-
surance policy with Empire. Empire refused to provide it, so In-
sured—assuming that the District Court had the power to grant
the relief as a matter of course to enable the case to proceed to
trial—moved the District Court to step in.
Insured’s motion was unsophisticated. It simply asked the
District Court to require Empire to engage in an appraisal as In-
sured’s policy provided. The case could not proceed to trial with-
out an appraisal. And given Empire’s resistance to an appraisal, an
order requiring Empire to submit to one had to issue if the case
was to go forward.
The District Court had the power to grant this relief in the
exercise of its inherent power. And Insured didn’t need to cite to
that power for the District Court. The Supreme Court “has long
recognized that a district court possesses inherent powers that are
‘governed not by rule or statute but by the control necessarily
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18 T JOFLAT, J., Dissenting 22-11059
vested in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.’” Dietz v. Bouldin,
579 U.S. 40, 45 136 S. Ct. 1885, 1891 (2016) (quoting Link v. Wabash
R. Co., 370 U.S. 626, 630–631, 82 S. Ct. 1386, 1839 (1962)). District
courts frequently exercise their inherent power in this way as a
matter of course without reciting their inherent power as the
source of their authority to act. As the former Fifth Circuit ob-
served, “[t]he inherent powers doctrine . . . is rooted in the notion
that a federal court, sitting in equity, possesses all of the common
law equity tools of a Chancery Court (subject, of course, to con-
gressional limitation) to process litigation to a just and equitable
conclusion.” ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1359 (5th
Cir. 1978). One of the tools is the injunction. It comes front and
center when the remedy at law is inadequate.
In Klay, we observed that the All Writs Act “is a codification
of the federal courts’ traditional, inherent power.” 376 F.3d at 1099.
The Act’s role is to facilitate the “[district] court’s effort to manage
the case to judgment.” Barton, 569 F.2d at 1359.
Whereas traditional injunctions are predicated upon
[a] cause of action, an All Writs Act injunction is pred-
icated upon some other matter upon which a district
court has jurisdiction. Thus, while a party must “state
a claim” to obtain a “traditional” injunction, there is
no such requirement to obtain an All Writs Act in-
junction . . . . The requirements for a traditional in-
junction do not apply to injunctions under the All
Writs Act because a court’s traditional power to
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22-11059 T JOFLAT, J., Dissenting 19
protect its jurisdiction, codified by the Act, is
grounded in entirely separate concerns.
Klay, 376 F.3d at 1100. Here, the concern is processing Insured’s
case to trial. That is why the District Court entered the Appraisal
Order. The parties’ insurance policy gave Insured (and Empire) the
right to an appraisal. Insured sought one. Empire opposed its re-
quest and is doing so now.
The granting of Insured’s motion was a classic application
of the District Court’s inherent power. The District Court entered
the injunction in aid of its responsibility to guide this case to a just
conclusion. Without the injunction ordering the appraisal, this
case could not proceed to trial. As Barton makes clear, the injunc-
tion’s service is to facilitate the “court’s effort to manage the case
to judgment.” 569 F.2d at 1359. In the face of Empire’s resistance,
the law did not provide a mechanism that would ensure that an
appraisal would be done so that a trial of the case could be held.
Entering an injunctive order to facilitate its management of
the case was the district court’s objective in SEC v. Torchia,
922 F.3d 1307 (11th Cir. 2019). However, the district court commit-
ted a legal error in issuing the injunction and therefore abused its
discretion. But that didn’t turn the injunction into a non-injunction
and foreclose our § 1292(a)(1) jurisdiction. Rather, we entertained
the interlocutory appeal, corrected the error, and remanded the
case for further proceedings. I refer to that decision now because
it demonstrates the value of § 1292(a)(1) review of an injunction
issued pursuant to a district court’s inherent power.
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20 T JOFLAT, J., Dissenting 22-11059
D.
Torchia involved a Ponzi scheme operated by James Torchia.
Id. at 1311. Katherine and Richard Sutherland were victims. Id. at
1312. They paid CN Capital, a Torchia entity, for a life insurance
policy on the life of Jimmy Martin in which they were the desig-
nated beneficiaries. Id. The SEC sued Torchia, bringing an end to
the scheme, and the district court appointed a receiver for CN Cap-
ital to marshal its assets and distribute the proceeds thereof to its
“Direct Investors,” including the Sutherlands. Id. The district court
ordered the Direct Investors either to assign their insurance policies
to the receiver or remit to the receiver the value of the benefit they
received from CN Capital including any “fictitious profit.” Id.19
The receiver, acting under the district court’s order, “de-
mand[ed] that [the Sutherlands] either assign the Martin policy to
him or remit $25,820.34 in purported fictitious profits.” Id. When
the Sutherlands refused to comply, the district court ordered them
to assign the Martin policy or remit the $25,820.34 to the receiver.
Id. at 1312–13.
The Sutherlands appealed the district court’s order on the
ground that “they were denied due process because the district
court’s summary proceedings did not provide them with a mean-
ingful opportunity to present their claims and defenses [to the
19 “‘Fictitious profits’ included ‘the amount of premiums paid by CN Capital
to keep the Direct Investors’ policies in force, and the fair market value of
other services provided to the Direct Investors by CN Capital.’” SEC v. Torchia,
922 F.3d 1307, 1312 (11th Cir. 2019).
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22-11059 T JOFLAT, J., Dissenting 21
receiver’s claim] or to challenge the receiver’s determinations or
calculations related to the claimed fictitious profits.” Id. at 1314.
We entertained the appeal as an interlocutory appeal under
§ 1292(a)(1) and upheld the Sutherlands’ due process argument
with this statement:
Under 28 U.S.C. § 1292(a)(1), we have jurisdiction
to review certain interlocutory orders, such as those
“granting, continuing, modifying, refusing or dissolv-
ing injunctions, or refusing to dissolve or modify in-
junctions.” “In determining what is an appealable or-
der under § 1292(a)(1), courts look not to the termi-
nology, but to the ‘substantial effect of the order
made.’”
The district court’s . . . order requiring the Suther-
lands to either remit the purported fictitious profits
or assign the Martin policy to the receiver, consistent
with its prior order stating that all Direct Investors
must remit fictitious profits or assign their policies, is
an order “granting [or] continuing . . . [an] injunc-
tion” under § 1292(a)(1). It “command[s] . . . an ac-
tion” concerning the merits of the relief requested by
the receiver.
Torchia, 922 F.3d at 1314 (alterations in original) (second and third
omissions in original) (citations omitted).20
20 Yeargin Constr. Co. v. Parsons & Whittemore Ala. Mech. & Servs. Corp.,
609 F.2d 829 (5th Cir. 1980), and Laje v. R.E. Thomason Gen. Hosp.,
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22 T JOFLAT, J., Dissenting 22-11059
In deciding to exercise its § 1292(a)(1) jurisdiction, the Tor-
chia panel gave no legal significance to the fact that the district
court’s initial orders21 were not based on a cause of action asserted
in a complaint, on findings of fact and conclusions of law made
pursuant to Rule 52(a)(2),22 or in compliance with Rule 65(d). See
id. at 1315. The district court issued the orders to enable the re-
ceiver to marshal CN Capital’s assets. How else would the receiver
marshal the assets? Bring an action at law against the Direct Inves-
tors and obtain money judgments and then writs of attachment or
garnishment to satisfy the judgments? What about coercing the
assignment of the life insurance policies to the receiver? No legal
remedy I am aware of could do that.
To sum up, in issuing these injunctive orders, the district
court simply drew on its inherent power to enable the court-ap-
pointed receiver to get its job done.
III.
Assuming the Appraisal Order is an injunction, the Majority
holds that it is not appealable under 28 U.S.C. § 1292(a)(1) because
Empire can obtain appellate review of the order under 28 U.S.C.
564 F.2d 1159 (5th Cir. 1977), quoted in Torchia, constitute Eleventh Circuit
precedent. See Bonner, 661 F.2d at 1207.
21 The orders required “all Direct Investors [to] remit fictitious profits or assign
their policies” to the receiver. Torchia, 922 F.3d at 1315.
22 As for Rule 52(a) findings and conclusions, it is an everyday occurrence that
we affirm district courts’ decisions on the ground that they are based on find-
ings and conclusions implied from evidence in the record.
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22-11059 T JOFLAT, J., Dissenting 23
§ 1291 “after trial by appealing any final judgment against it—
meaning that the order is not effectively challengeable only by im-
mediate appeal.” Ante at 19. The Majority reinforces this holding
with two parenthetical quotations: “(‘If relief may be obtained
upon review after trial, the parties are not considered to have suf-
fered irreparable consequences.’); (‘What makes an issue effectively
unreviewable on appeal is the insufficiency of the remedy after final
judgment.’).” Ante at 20 (first quoting Admin. Mgmt. Servs., Ltd. v.
Royal Am. Managers, Inc., 854 F.2d 1272, 1279 (11th Cir. 1988); and
then quoting Bowman, 341 F.3d at 1237).
So, as the Majority sees it: Empire has an adequate remedy
at law. It can challenge the Appraisal Order in appealing the final
judgment pursuant to 28 U.S.C. § 1291. A requirement for the issu-
ance of an injunction—an inadequate remedy at law—is missing.
A review of the Appraisal Order pretrial under § 1292(a)(1) is there-
fore inappropriate.
I disagree with the Majority’s position that Empire will be
able to obtain appellate review of its challenge to the Appraisal Or-
der in appealing an adverse final judgment under § 1291.23 I do so
for the reasons set out in Sections A, B, and C below.
A.
The first reason for my disagreement with the Majority is
that it ignores the probability that Empire’s compliance with the
Appraisal Order will moot its controversy with the District Court
23 See ante at 19.
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24 T JOFLAT, J., Dissenting 22-11059
over the propriety of the Appraisal Order’s issuance. The contro-
versy will be moot even if Empire’s compliance does not occur un-
til after it has been held in contempt for refusing to comply with
the order. Our precedent on this point is clear. “Once a contemnor
has purged his contempt, he sacrifices his ability to challenge the
merits of the underlying contempt order.” In re Grand Jury Sub-
poena Duces Tecum, 955 F.2d 670, 672–73 (11th Cir. 1992). “[O]nce a
civil contempt order is purged, no live case or controversy remains
for adjudication.” In re Campbell, 628 F.2d 1260, 1261 (9th Cir.
1980) (per curiam) (collecting cases stating the same).
It is true that compliance with an injunction does not render
the issue moot where it is possible to undo the effects of compli-
ance. “Under settled law, we may dismiss the case [as moot] only
if ‘it is impossible for a court to grant any effectual relief whatever
. . . .’” Mission Prod. Holdings, Inc. v. Tempnology, LLC., 139 S. Ct.
1652, 1660, 203 L. Ed. 2d 876 (2019) (quoting Chafin v. Chafin, 568
U.S. 165, 172, 133 S. Ct. 1017, 1019 (2013)). There is nothing this
Court could do to “undo the effects of compliance” in the situation
here other than compensate Empire for the expense it incurred in
complying with the Appraisal Order or recreate the status quo
ante, and both are indeed problematic.24
B.
My second reason for disagreeing is that Empire can obtain
appellate review after the cases return to the District Court. If
24 See infra Part V.
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22-11059 T JOFLAT, J., Dissenting 25
Empire refuses to comply with the Appraisal Order and is held in
civil contempt, and the District Court imposes a sanction and en-
ters a judgment for that sanction, Empire may appeal that judg-
ment under § 1291. A sanction entered as the result of a finding of
contempt “render[s] the contempt judgment final and ma[kes]
both the findings of contempt and the later sanction order appeal-
able under 28 U.S.C. § 1291.” PlayNation Play Sys., Inc. v. Velex Corp.,
939 F.3d 1205, 1212 (11th Cir. 2019) (alterations in original) (quot-
ing Sizzler Fam. Steak Houses v. W. Sizzlin Steak House, Inc., 793 F.2d
1529, 1533 n.1 (11th Cir. 1986)). In prosecuting the § 1291 appeal,
Empire could challenge the underlying Appraisal Order. The re-
view Empire would obtain under § 1291 in that situation would be
the same as the review it would obtain under § 1292(a)(1) now.
C.
My third reason for disagreeing with the Majority is this:
Empire will likely comply with the Appraisal Order and litigate In-
sured’s loss at trial via an appraisal; then, in appealing the final judg-
ment under § 1291, Empire will seek a new trial based on the Dis-
trict Court’s error in issuing the Appraisal Order.25 That will be
giving Empire two bites at the apple.26 Empire’s lawyers will read
25 And Empire will likely prevail given the Majority’s conclusion (in dismissing
these appeals) that the issuance of the Appraisal Order constituted an abuse of
discretion.
26 With two bites at the apple, Empire will not seek appellate review of the
Appraisal Order as described in Section III.B above.
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26 T JOFLAT, J., Dissenting 22-11059
our mandate that way and they will plan Empire’s litigation strat-
egy accordingly.
Empire will submit to an appraisal, and at trial, the appraisal
will establish Insured’s loss. If the appraisal is at least as favorable
(to Empire) as the loss a jury would fix based on the evidence of
loss presented at trial, Empire will accept the judgment based on
the appraisal and close the case. But if Empire believes that a trial
in which Insured has the burden of introducing evidence to prove
its loss would yield a more favorable loss amount, it will appeal the
final judgment under § 1291 and challenge the Appraisal Order.
During that appeal, Empire’s lawyers will be armed with our
opinion, which essentially determines that the District Court
abused its discretion in issuing the Appraisal Order. Insured’s law-
yers will tell Insured that: (1) a reversal of the judgment is likely,
(2) a new trial will be ordered, (3) preparing for a new trial in which
Insured will have to prove its loss with live evidence will be very
expensive, and (4) the loss the jury fixes based on the evidence In-
sured (and Empire) introduce at the new trial may be less than what
the appraisal fixed. A cost-benefit analysis will inform Insured on
whether to accept Empire’s offer to settle for far less than it recov-
ered at trial.
Faced with this dilemma, Insured will wonder why its law-
yers moved the District Court for the Appraisal Order in the first
place. They could have recommended that Insured not pursue an
appraisal and suffer only one trial.
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22-11059 T JOFLAT, J., Dissenting 27
IV.
In reaching its decision to dismiss these appeals for lack of
jurisdiction, the Majority asserts a reason other than the insuffi-
ciency of Insured’s complaint for declining to exercise jurisdiction
under § 1292(a)(1). It states that the Appraisal Order, itself, fails to
demonstrate that Insured would suffer a “serious, perhaps irrepa-
rable consequence” if it is denied the relief the order provides. Ante
at 17–19. To support this, the Majority draws upon five cases where
the appeals each related to the denial of an injunction.27 In my
view, cases reviewing interlocutory orders denying an injunction
are of a far different breed and should not be relied upon here.
Nonetheless, Empire’s compliance with the Appraisal Order will
render this issue moot and thereby preclude our review of the
27 See Carson v. Am. Brands, Inc., 450 U.S. 79, 101 S. Ct. 993 (1981); United States
v. City of Hialeah, 140 F.3d 968 (11th Cir. 1998); Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 108 S. Ct. 1133 (1988); Admin. Mgmt. Servs., Ltd.
v. Royal Am. Managers, Inc., 854 F.2d 1272 (11th Cir. 1988); Roberts v. St. Regis
Paper Co., 653 F.2d 166 (5th Cir. Unit B Aug. 10, 1981) (refusing to dissolve an
injunction). Aside from the denial-of-an-injunction cases, the Majority relies
on only one other case, United States v. Bowman, 341 F.3d 1228 (11th Cir. 2003),
to support the argument that Empire must satisfy a “serious, perhaps irrepa-
rable consequence” requirement to establish § 1292(a)(1) jurisdiction. How-
ever, it is important to note that Bowman is also not relevant to our current
situation. In Bowman, the appellants were not challenging an injunction; in-
stead, they were contesting an order that upheld an “ex parte seizure.” Id. at
1229. Furthermore, this order was associated with an in rem forfeiture action.
Id.; see also supra Part I (describing an injunction traditionally as an in personam
order). Therefore, the Bowman case does not provide any guidance or rele-
vance to our present case, which pertains to an appeal following the grant of
an injunction.
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28 T JOFLAT, J., Dissenting 22-11059
Appraisal Order on final judgment. So, this situation does indeed
demonstrate the presence of serious, perhaps irreparable conse-
quences.
In Abbott, the Supreme Court rejected the argument that, for
jurisdictional purposes, there is a distinction between orders deny-
ing and granting injunctions. See 138 S. Ct. at 2321. Still, I empha-
size the practical and legal distinctions in our review of injunction
denials and grants, which could explain the “serious, perhaps irrep-
arable consequence” language cited by the Majority.
When appealing an interlocutory order denying an injunc-
tion, the denial order itself will often lack the necessary detail to
determine what exactly the district court has denied. Thus, to pro-
vide the appellate panel with a clear understanding of the injunc-
tive relief it was seeking, the movant must include the record of its
application for the injunction. This record will not only allow the
panel to determine whether the movant sought an injunction en-
forceable via the district court’s contempt power but also deter-
mine whether the district court’s order addressed the movant’s ap-
plication in full.
Additionally, the legal consequences of declining to review
an interlocutory denial of an injunction are distinct. First, the denial
of an interlocutory injunction is tentative and provisional, subject
to reconsideration by the district court. Second, if the injunction
was sought in the plaintiff’s complaint and its denial is reduced to
a final judgment, the movant can obtain review of the denial under
§ 1291. Finally, unlike Empire’s situation here, a movant cannot
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22-11059 T JOFLAT, J., Dissenting 29
obtain review of the denial of its application for injunctive relief by
resisting the order and facing contempt charges. That is because
the denial of an injunction is not enforceable by the district court’s
contempt power—that much is obvious.
Assuming the Appraisal Order remains in place on remand,
this Court, in entertaining Empire’s appeal of the adverse final
judgment under § 1291, will have to decide the legal effect of the
Appraisal Order’s silence regarding the “serious, perhaps irrepara-
ble consequence” the denial of the order would have visited on In-
sured had the order been denied.
V.
Our decision to dismiss these appeals for want of jurisdic-
tion under § 1292(a)(1) is troubling. I posit that the decision will
have a deleterious effect on our Court’s reputation, its relationship
with the district courts in our circuit, and, in turn, the respect of
the district courts amongst the litigants in these cases and the liti-
gants awaiting their turn in the district courts’ queues. I begin with
the consequences for our Court.
A.
The Majority says we lack jurisdiction under § 1292(a)(1) be-
cause the Appraisal Order is not an injunction. It is not an injunc-
tion because the District Court abused its discretion in issuing it.28
28 One could say that our determination that the District Court abused its dis-
cretion in entering the Appraisal Order is the raison d’être of our jurisdictional
decision, and therefore a holding.
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30 T JOFLAT, J., Dissenting 22-11059
In other words, if we accepted jurisdiction (because the Appraisal
Order is an injunction) and entertained these appeals on the merits,
Empire would prevail given the District Court’s error. But Empire
must now wait until the conclusion of the litigation to challenge
the merits.
In this second appeal following the entry of final judgment,
another panel of this Court, acting as a “recognizing” court, will
have to decide whether to defer to our determination, as the “ren-
dering” court, that the District Court abused its discretion in issu-
ing the Appraisal Order. If the panel defers, Empire will receive a
new trial, where Insured’s loss will not be fixed by an appraisal.29
In asking the recognizing court to defer to our abuse-of-dis-
cretion determination, Empire will rely on the doctrine of collat-
eral estoppel, arguing that our determination was made after the
parties fully litigated the issue. Insured will oppose this, arguing
that Empire’s compliance with the Appraisal Order rendered moot
the controversy over the order’s validity. Empire will have com-
plied with the order because we effectively invited it to, promising
a second bite of the apple at the conclusion of the litigation. After
Insured’s case is tried and a final judgment is entered, Empire can
obtain appellate review of the Appraisal Order in appealing that
judgment. If the recognizing court agrees with Insured—that
there is no longer an Article III case or controversy concerning the
29 For a description of “rendering” and “recognizing” courts in the issue pre-
clusion context, see Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1215–
23 (11th Cir. 2017) (en banc) (Tjoflat, J., dissenting).
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22-11059 T JOFLAT, J., Dissenting 31
Appraisal Order’s validity—our promise of a second bite will van-
ish, along with Empire’s respect for the integrity of our decision-
making. We will have made a false promise in holding that Empire
could have a second bite. Empire had the opportunity to seek ap-
pellate review of the Appraisal Order pretrial under § 1291 by suf-
fering a contempt adjudication, receiving a sanction, and appealing
the corresponding judgment. However, relying on our promise,
Empire forfeited this option.
As for efficiency, our decision to determine § 1292(a)(1) ju-
risdiction by looking to the merits of the enjoined party’s challenge
to the injunction is a form of make-work.30 When we deny juris-
diction over interlocutory appeals of injunctions based on the mer-
its, promising the enjoined party subsequent review upon final
judgment, this Court ends up reviewing the same issue twice. The
first panel finds no jurisdiction because the district court erred,31
and then the second panel reviews those same merits, deciding
again whether the injunction constituted an abuse of discretion.
The first panel could avoid the second panel’s work altogether if it
instead entertained the interlocutory appeal, corrected the error,
30 This part of the discussion assumes that the enjoined party suffered sufficient
prejudice to claim that it should be granted a new trial. I posit that the entry
of few interlocutory orders would result in a reversible error for lack of preju-
dice. Not so in the cases before us.
31 One could say that our determination that the District Court’s issuance of
the injunction was an abuse of discretion (for jurisdictional purposes) would
be an advisory opinion, like an answer to a hypothetical question, foreclosed
by Article III.
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32 T JOFLAT, J., Dissenting 22-11059
and remanded the case for further proceedings, as we did in Torchia.
We could also avoid the issue altogether by not assuring the en-
joined party that this Court will review the injunction on appeal of
an adverse final judgment—notwithstanding the enjoined party
possibly mooting the issue through its compliance with the injunc-
tion.
I sense that the Majority fears that if we accept jurisdiction
in this case, it will open § 1292(a)(1)’s floodgates and we will be in-
undated with appeals of interlocutory coercive orders, i.e., injunc-
tions. This fear is unfounded. Most interlocutory injunctions are
provisional,32 subject to the district court’s modification as the case
moves toward trial. See Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 377, 101 S. Ct. 669, 675 (1981) (“[W]e have generally de-
nied review of pretrial discovery orders . . . .”). And review of pro-
visional rulings, like pretrial discovery orders, are generally denied
because our decision would be advisory, and therefore unconstitu-
tional. Banca Pueyo SA v. Lone Star Fund IX, L.P., 978 F.3d 968, 973
(5th Cir. 2020) (explaining that the issue in reviewing a provisional
ruling is that “our decision would . . . be advisory”).33 When
32 I omit preliminary injunctions issued to maintain the status quo while the
trial court reaches the merits of the plaintiff’s causes of action.
33 In Risjord, the Supreme Court expounded on its declination to review dis-
covery orders with this statement: “Our rationale has been that in the rare case
when appeal after final judgment will not cure an erroneous discovery order,
a party may defy the order, permit a contempt citation to be entered against
him, and challenge the order on direct appeal of the contempt ruling.” 449
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22-11059 T JOFLAT, J., Dissenting 33
parties seek an advisory opinion, they fail to present a justiciable
controversy. Flast v. Cohen, 392 U.S. 83, 95, 88 S. Ct. 1942, 1950
(1968)). As a result, these provisional injunctive orders are either
not appealed or the order is summarily affirmed.
Occasionally, however, an interlocutory injunction is not
provisional. That is the situation here. Insured’s contract right is
lost altogether unless enforced with an injunction like the Appraisal
Order. The same is true when a district court orders a party to
divulge privileged information. Absent the right to an interlocu-
tory appeal, the enjoined party’s only recourse would be to defy
the injunctive order, face a contempt adjudication and sanction,
and then appeal the resulting judgment under § 1291.
B.
How our method for determining whether we have
§ 1292(a)(1) jurisdiction affects the district courts will be of critical
importance. Here, the District Court will learn that its issuance of
the Appraisal Order constituted an abuse of discretion and, if the
Appraisal Order remains in force, Empire may be entitled to a sec-
ond trial.34 No trial court relishes trying a case twice, but that may
U.S. at 377, 101 S. Ct. at 675 (citing Cobbledick v. United States, 309 U.S. 323,
327, 60 S. Ct. 540, 542 (1940)).
34 What will the parties and the District Court perceive as the law of this case?
That the Appraisal Order remains intact? By stating that this Court will enter-
tain Empire’s challenge to the Appraisal Order upon final judgment, we imply
that the Appraisal Order has not been disturbed. This is one potential inter-
pretation, as our dismissal for lack of jurisdiction hinges on the availability of
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34 T JOFLAT, J., Dissenting 22-11059
occur here. To avoid a second trial, considering our conclusion that
the issuance of the Appraisal Order was an abuse of discretion,
should the District Court accede to Empire’s position and vacate
the order? What’s at stake here? On one side, we have Insured’s
contract right to an appraisal and a trial where the insurance loss is
established by an appraisal. Insured asked for the Appraisal Order
because it believes that engaging in an appraisal will be less expen-
sive than proving its loss with live testimony at trial. On the other
side, we have the District Court’s docket and other litigants waiting
to be heard. A second trial would delay the consideration of their
cases.
The district courts will look with disfavor on the two-bites-
at-the-apple dismissal of § 1292(a)(1) appeals on the ground that
the appellant failed to show that the challenged injunction was not
an abuse of discretion. To avoid the prospect of two trials, district
courts will likely recognize that parties enjoined under the court’s
inherent power will only have the option of reviewing pretrial or-
ders under § 1291. That is, through appealing a judgment that finds
them in contempt and imposes sanctions. Hearings on motions to
show cause why the enjoined party should not be held in contempt
§ 1291 review. However, when we do entertain Empire’s challenge upon final
judgment, will we grant Empire a new trial? We have already said, in effect,
that Empire will be entitled to one. Alternatively, a future panel could treat
our basis for dismissing these appeals—the District Court’s abuse of discre-
tion—as pure dicta. In any case, in reviewing Empire’s appeal under § 1291,
we will have to address Insured’s argument that Empire’s appeal of this issue
is moot—and that determination remains uncertain.
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22-11059 T JOFLAT, J., Dissenting 35
and sanctioned can be unpleasant, but the absence of § 1292(a)(1)
review will likely lead to their increase.
VI.
The Appraisal Order is an injunction on its face. We have
§ 1292(a)(1) jurisdiction to review it. The District Court entered
the Appraisal Order pursuant to its inherent power, as codified in
the All Writs Act, which is “necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious dispo-
sition of cases.” Dietz, 579 U.S. at 45, 136 S. Ct. at 1891. The in-
junction is one of the common law equity tools district courts use
to achieve the just disposition of a case. District courts use this tool
routinely, and they do so without announcing that they are issuing
the injunctive order in the exercise of their “inherent power.” The
District Court used this tool here so the case could go forward to
trial and final judgment.
The Appraisal Order is due to be affirmed. I respectfully dis-
sent.
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