                                   Mary WEAVER, Plaintiff-Appellant,

                                                      v.

              FLORIDA POWER & LIGHT COMPANY, Paul Hederman, Defendants-Appellees.

                                                No. 97-4906.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               April 13, 1999.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-8519-CV-KLR),
Kenneth L. Ryskamp, Judge.

Before TJOFLAT and DUBINA, Circuit Judges, and SMITH*, Senior Circuit Judge.

        TJOFLAT, Circuit Judge:

        The district court in this case enjoined the plaintiff and anyone acting on her behalf from arbitrating

certain claims, because the district court had already decided those claims (and entered final judgment) and

the claims were therefore barred by the doctrines of res judicata and waiver. We hold that injunctive relief

was improper because the defendant has an adequate remedy at law—namely, it can raise its defenses of res

judicata and waiver before the arbitrators. Thus, the district court abused its discretion by entering the

injunction.

                                                      I.

        Mary Weaver was an employee of Florida Power & Light Company ("FPL"), and a member of the

International Brotherhood of Electrical Workers ("IBEW"). In 1995, her employment was terminated.

Weaver claimed that this termination was in violation of state and federal laws prohibiting sex and handicap

discrimination. She also claimed that the termination violated various provisions of the collective bargaining

agreement between the IBEW and FPL.




   *
    Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation.
           Weaver filed suit against FPL in a Florida circuit court based on her discrimination claims. FPL

removed the suit to the United States District Court for the Southern District of Florida,1 which dismissed

certain claims and granted summary judgment for the defendant on the others. This court affirmed the district

court's decision on appeal. See Weaver v. Florida Power & Light Co., 124 F.3d 221 (11th Cir.1997).

           Prior to filing her lawsuit, Weaver submitted grievances to the IBEW in accordance with the dispute

resolution procedures contained in the collective bargaining agreement.2 At the time the district court

rendered its judgment on Weaver's discrimination claims, her claims under the collective bargaining

agreement were proceeding to arbitration (pursuant to the agreement). FPL moved the district court to enjoin

the arbitration on the following grounds: (1) The arbitration would involve the same claims presented in

Weaver's district court action, and therefore the district court's resolution of that action was res judicata as

to the arbitration; and (2) Weaver waived her right to pursue her claims under the collective bargaining

agreement when she filed the lawsuit against FPL. The district court, concluding that an injunction was

necessary to protect the integrity of its judgment, enjoined Weaver and the IBEW from proceeding with the

arbitration.3 See Weaver v. Florida Power & Light Co., 966 F.Supp. 1157, 1162-63 (S.D.Fla.1997). Weaver

appeals.

                                                        II.

           As an initial matter, we must determine whether the district court had jurisdiction to enter the

injunction. It is well-settled law that the filing of a notice of appeal divests the district court of jurisdiction

over a case. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74

L.Ed.2d 225 (1982). In this case, the district court entered its injunction while Weaver's appeal of her


   1
   Because Weaver's complaint was based in part on the federal Americans with Disabilities Act, the
lawsuit raised a federal question, and removal pursuant to 28 U.S.C. § 1441 was therefore proper.
   2
    The grievances were based largely on the same events that gave rise to the lawsuit.
   3
   The district court found its authority to enter the injunction in the All Writs Act, 28 U.S.C. § 1651(a)
(1994). The injunction prevented Weaver "and anyone acting on her behalf"—presumably meaning the
IBEW—from proceeding in the arbitration.

                                                        2
discrimination claims was still pending. The general rule regarding divestiture of jurisdiction, however, does

not apply to collateral matters not affecting the questions presented on appeal. See Trustees of the Chicago

Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund v. Central Transport,

Inc., 935 F.2d 114, 119-20 (7th Cir.1991); 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 3949.1, at 39-40 (2d ed.1996). The res judicata and waiver defenses on

which FPL based its motion to enjoin arbitration were separate and distinct from the issues raised by the

direct appeal;4 consequently, we conclude that the district court had jurisdiction to hear the defendant's

motion.

          The district court, however, abused its discretion by enjoining the arbitration proceedings.5 An

injunction is an equitable remedy, available only when there is no adequate remedy at law. See Rosen v.

Cascade Int'l, Inc., 21 F.3d 1520, 1527 (11th Cir.1994). We hold that FPL has an adequate remedy at law—it

can raise the issues of res judicata and waiver in the arbitration proceeding and, if its arguments are valid,

have the arbitration dismissed.6

          If FPL were attempting to enjoin an action by Weaver (or her representative) in another court, the

adequacy—indeed, the necessity—of the remedy at law would be clear. Res judicata and waiver are



   4
   The direct appeal involved the merits of Weaver's claims of sex and handicap discrimination. The
merits of her claims were completely unrelated to any issues involving the preclusive effect of the district
court's decision.
   5
   We review the grant of an injunction for an abuse of discretion. See CNA Fin. Corp. v. Brown, 162
F.3d 1334, 1337 (11th Cir.1998).
   6
    Weaver raised this argument in the district court by arguing that the "irreparable harm" required to
issue an injunction was lacking: The alleged "harm" is relitigation of claims that should be barred, and an
injunction is not needed to prevent that harm because FPL's defenses can be raised in arbitration. She did
not, however, raise the argument in her appellate brief. We usually do not address issues not raised on
appeal. See Arthur Pew Constr. Co., Inc., v. Lipscomb, 965 F.2d 1559, 1575 (11th Cir.1992). Weaver's
brief, however, makes an argument against the injunction based on the Norris-LaGuardia Act; the Norris-
LaGuardia Act, in turn, is based on the principle that federal courts should not resolve issues that can be
handled by arbitration. See Buffalo Forge Co. v. United Steelworkers of Am., 428 U.S. 397, 411-12, 96
S.Ct. 3141, 3149, 49 L.Ed.2d 1022 (1976). Consequently, Weaver has indirectly raised the issue of the
adequacy of FPL's legal remedy; we therefore address the issue in this opinion.

                                                      3
affirmative defenses, see Fed.R.Civ.P. 8(c), which, by definition, are raised for the purpose of avoiding claims

made by another party. They are thus properly raised in a proceeding brought by another party, and not as

independent grounds for relief.

         The difficulty in this case arises because the proceeding to be enjoined is not a judicial proceeding

but an arbitration. Remedies available through arbitration certainly are not remedies "at law" in the technical

sense. We are compelled to treat such remedies as remedies at law, however, because of the Federal

Arbitration Act, 9 U.S.C. §§ 1-16 (1994). The Act—by ensuring the enforceability of contractual arbitration

provisions and subjecting the resulting arbitrations to only a very limited degree of judicial review—embodies

a federal policy favoring arbitration. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S.

1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). That policy rules out any "judicial suspicion of the

desirability of arbitration and of the competence of arbitral tribunals," Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 627, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985), a competence that

extends to deciding issues of waiver, res judicata, and other defenses that challenge whether a matter should

be arbitrated at all. See Moses H. Cone Mem'l Hosp., 460 U.S. at 24-25, 103 S.Ct. at 941. Consequently, we

conclude that a remedy available through arbitration, if adequate, constitutes an adequate remedy at law such

that equitable relief is improper.7 See Foxboro Co. v. Arabian Am. Oil Co., 805 F.2d 34, 37 (1st Cir.1986);

Merrill, Lynch, Pierce, Fenner & Smith, Inc., v. Thomson, 574 F.Supp. 1472, 1479 (E.D.Mo.1983).

        FPL contends that the remedy available through arbitration is not adequate, because pursuing such

a remedy will force it to undergo expensive and time-consuming adversarial proceedings that could be



   7
    This conclusion fits with the original purpose of the adequate remedy at law requirement. The rule
developed as a way for courts of equity to respect the separate jurisdiction of courts of law. See Owen M.
Fiss & Doug Rendleman, Injunctions 60-62 (1984). Today, of course, that problem has been eliminated
by the merger of law and equity, see Fed.R.Civ.P. 2; the adequate remedy at law requirement lives on for
other reasons. However, in much the same way as courts of law and equity were separate, contemporary
federal law recognizes judicial proceedings and arbitration proceedings as separate, but equally important,
fora for adjudicating claims. See Mitsubishi Motors Corp., 473 U.S. at 628, 105 S.Ct. at 3354. The same
principle that gave birth to the adequate remedy at law requirement therefore dictates that the judiciary
not intervene when an adequate remedy is available through arbitration.

                                                       4
avoided by the issuance of an injunction. We see no reason why proceedings before a district court would

be more costly than proceedings before a board of arbitrators. FPL can make its arguments about res judicata

before the arbitrators at the outset of the arbitration proceedings; if its arguments are correct,8 the arbitrators

(if they are competent—as we must assume that they are, see Mitsubishi Motors Corp., 473 U.S. at 627, 105

S.Ct. at 3354) will dismiss the arbitration.9 Such an outcome would be no more costly—and probably less

costly—than prosecuting a motion for injunctive relief in the district court.

                                                       III.

        Having concluded that FPL has an adequate remedy at law, we must also conclude that the district

court abused its discretion in granting its motion for injunctive relief.10 The district court's order granting the

motion is therefore

        REVERSED.




   8
    We of course express no opinion as to the merits of the defendant's arguments.
   9
    If, for some reason, the arbitrators were to ignore FPL's defenses, FPL would still have an adequate
remedy at law, because under those circumstances a district court could vacate the arbitration award (or
refuse to enforce it) based on the arbitrators' "manifest disregard" of the law. See Montes v. Shearson
Lehman Bros., Inc., 128 F.3d 1456, 1461 (11th Cir.1997).
   10
    We upheld an injunction of an arbitration on res judicata grounds in Kelly v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993). That opinion, however, addressed only the
question whether the Federal Arbitration Act, of its own force, completely forbids a district court from
enjoining an arbitration proceeding on res judicata grounds. It did not address the question whether, in a
given case, the requirement that the remedy at law be inadequate might prevent a district court from
granting equitable relief. Because the issue was not raised in Kelly, that opinion does not foreclose our
holding in this case.

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