HAYNES, Circuit Judge:
Southwestern Electric Power Company, American Electric Power Service Corporation ("AEPSC"), and American Electric Power Company, Incorporated ("AEP") (collectively, "SWEPCO")
SWEPCO is a public electric utility serving Louisiana, Arkansas, and Texas. This suit arose out of an insurance policy SWEPCO purchased from the Underwriters for coverage associated with the construction of a power plant in Louisiana. After this case was removed to federal district court from state court, the Underwriters filed the Motion to Compel Arbitration pursuant to the Convention.
Over SWEPCO's objection, the district court adopted the findings of the Report and Recommendation written by a magistrate judge, which reasoned that the insurance contract between the parties contained a clear and unambiguous arbitration clause. The court therefore granted the Motion to Compel Arbitration pursuant to the Convention, stayed the case, and
SWEPCO argues that under Freudensprung v. Offshore Technical Services., Inc., 379 F.3d 327, 335-37 (5th Cir.2004), the September 2013 Order is final and appealable based on the district court's expressed intent and an administrative closure. The Underwriters counter that Fifth Circuit case law interprets orders staying and administratively closing cases as interlocutory, and that the September 2013 Order fits this mold. See, e.g., Mire v. Full Spectrum Lending Inc., 389 F.3d 163, 165-67 (5th Cir.2004). In supplemental briefs on jurisdiction filed at our direction and at oral argument, the parties conceded that this court lacks appellate jurisdiction under 28 U.S.C. § 1292(b) because neither party petitioned this court for discretionary review as § 1292(b) requires.
Usually, this court only has jurisdiction over appeals from final orders, and may raise the issue of jurisdiction sua sponte. See 28 U.S.C. § 1291; CitiFinancial Corp. v. Harrison, 453 F.3d 245, 249 (5th Cir.2006). Generally, the FAA "governs appellate review of arbitration orders," including those arising under the Convention. Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 309 (5th Cir.2003); 9 U.S.C. §§ 16, 208. The law carries out "Congress's intent in enacting [the FAA] ... to favor arbitration" by "authorizing immediate appeals from orders disfavoring arbitration and forbidding immediate appeals from orders favoring arbitration." Apache Bohai, 330 F.3d at 309; 9 U.S.C. §§ 16, 208. "Except as otherwise provided in [28 U.S.C. § 1292(b)], an appeal may not be taken from an interlocutory order ... compelling
The Supreme Court has defined "final decision with respect to an arbitration" to mean "a decision that ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (internal quotation marks omitted). Applying this definition in Green Tree, the Supreme Court found a district court's order was "`a final decision with respect to an arbitration' within the meaning of [9 U.S.C.] § 16(a)(3)" when the order "directed that the dispute be resolved by arbitration and dismissed respondent's claims with prejudice, leaving the court nothing to do but execute the judgment," in that it had "plainly disposed of the entire case on the merits and left no part of it pending before the court." Id. at 85-87, 121 S.Ct. 513 (quoting 9 U.S.C. § 16(a)(3)).
Under Green Tree, we examine the language and nature of an order, along with the district court's intent, when determining whether an order is final and appealable. See, e.g., Mire, 389 F.3d at 165-67; Apache Bohai, 330 F.3d at 310; Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 476, 480-81, 483 (5th Cir. 2002). A district court order that compels arbitration and dismisses or closes a case outright possesses finality and confers jurisdiction on this court. See Am. Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 707-08 (5th Cir.2002) (holding an order was final and appealable where it "closed" the case and that there was "no practical distinction between `dismiss' and `close' for the purposes of [that] appeal"). But a district court order staying and administratively closing a case lacks the finality of an outright dismissal or closure. See, e.g., S. La. Cement, Inc. v. Van Aalst Bulk Handling, B.V., 383 F.3d 297, 299-302 (5th Cir.2004) (holding an order administratively closing a case and staying proceedings was interlocutory and noting the Fifth Circuit "has held post-American Heritage that unlike a dismissal a stay, by definition, constitutes a postponement of proceedings, not a termination, and thus lacks finality"); Mire, 389 F.3d at 166-67 (rejecting appellant's argument "that the administrat[ive] closure is akin to a dismissal" under Apache Bohai and Fifth Circuit case law, noting administrative closure has an effect "no different from a simple stay, except that it affects the count of active cases pending on the court's docket").
In short, our case law has developed a clear distinction between final orders dismissing cases after compelling arbitration and interlocutory orders staying and administratively closing cases pending arbitration. See Mire, 389 F.3d at 165-67 ("`[H]ad the District Court entered a stay instead of a dismissal in this case, that order would not be appealable.'" (quoting Green Tree, 531 U.S. at 87 n. 2, 121 S.Ct. 513)); Apache Bohai, 330 F.3d at 309-10; Am. Heritage, 294 F.3d at 707-08. See also ATAC Corp. v. Arthur Treacher's, Inc., 280 F.3d 1091, 1099, 1102 (6th Cir. 2002) (discussing the differences between reopening a stayed case and reopening a dismissed case and finding that "[e]ven if the district court has nothing left to do unless and until one of the parties moves to reopen the case after arbitration, that does not make a stay and a dismissal equivalent").
Here, the district court's September 2013 Order compelling arbitration granted a "[s]tay" of the "[p]roceedings," "ORDERED that this civil action is
We conclude the September 2013 Order is interlocutory under our jurisprudence. See Mire, 389 F.3d at 165-67. The September 2013 Order stayed the case and closed it only for administrative purposes, rather than dismissing the case outright. Id.; CitiFinancial, 453 F.3d at 249-51. Although the district court did not anticipate a likelihood that further proceedings would be necessary, finality requires an order that "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." Green Tree, 531 U.S. at 86, 121 S.Ct. 513 (internal quotation marks omitted). Unlike the order in American Heritage, the September 2013 Order did not close the case outright. Cf. Am. Heritage, 294 F.3d at 707-08. Nor did the September 2013 Order dismiss the case. Instead, the order performed docket management by administratively closing the case, such that the parties could easily reopen it in the district court should further proceedings prove necessary.
Accordingly, this appeal is DISMISSED for lack of appellate jurisdiction. See 28 U.S.C. § 1291.