As if following Voltaire,1 a number of federal judges have now opined that if the power to enjoin arbitration does not exist under the Federal Arbitration Act (FAA), it is up to the courts to invent one.2 As explained below, however, except in exceptional circumstances—such as where a court must issue an injunction to protect an existing order or judgment3—a federal court does not have a general power to enjoin arbitration.
The controlling authority is Pennsylvania Bureau of Correction v. U.S. Marshals Service.4 In that case, the Supreme Court held that the All Writs Act, 28 U.S.C. §1651, does not authorize federal courts “to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.” The problem there was how to move an inmate from a state prison to the federal courthouse. A magistrate judge issued an order that (i) directed state officials to transport the prisoner to the county jail; and then (ii) directed federal marshals to take custody of the prisoner and transport him to court.
