William Attix v. Carrington Mortgage Services, LLC ( 2022 )

USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 1 of 52
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13575
____________________
WILLIAM ATTIX,
on behalf of himself and all others similarly situated,
Plaintiff-Appellee,
versus
CARRINGTON MORTGAGE SERVICES, LLC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-22183-UU
____________________
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2 Opinion of the Court 20-13575
Before BRANCH, GRANT, and BRASHER, Circuit Judges.
BRANCH, Circuit Judge:
Parties often agree to arbitrate disputes arising from their
contracts. They may arbitrate all kinds of disputes, including
whether their claims are arbitrable. In other words, parties are free
to arbitrate not only the “merits” of their claims, but also the
“arbitrability” of their claims. But—wait for it—parties sometimes
dispute whether an arbitrator should arbitrate arbitrability. When
that happens, a court must decide who decides whether the parties
will arbitrate. This is one such case.
In May 2020, William Attix sued his mortgage servicer,
Carrington Mortgage Services, asserting claims under the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.,
and Florida law. Attix’s claims arose from a mortgage payment he
made to Carrington using an automated pay-by-phone service
provided by Speedpay, a third-party payment service provider.
Before making his mortgage payment, Attix agreed to be bound by
Speedpay’s terms and conditions. Those terms and conditions—to
which Attix, Speedpay, and Carrington were parties—provided
that “any dispute arising from” Attix’s use of Speedpay’s service
“shall be” arbitrated. They also provided that an “arbitrator shall
also decide what is subject to arbitration unless prohibited by law,”
and incorporated by reference an arbitration provision of the
American Arbitration Association (“AAA”) stating that “[t]he
arbitrator shall have the power to rule on his or her own
jurisdiction.”
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After Attix filed suit, Carrington moved to compel
arbitration. Carrington argued that Attix’s claims arose from his
use of Speedpay’s service and therefore must be arbitrated under
the terms and conditions to which Attix had agreed. Carrington
also argued that, by agreeing that an arbitrator would decide “what
is subject to arbitration” and would “rule on his or her own
jurisdiction,” the parties had contracted to arbitrate any disputes
about whether Attix’s claims were arbitrable. Attix conceded that
he had agreed to arbitrate claims arising from his use of Speedpay’s
service, including the claims he had asserted against Carrington,
but argued that a provision of the Dodd-Frank Wall Street Reform
and Consumer Protection Act (Dodd-Frank Act), Pub. L. No. 111-
203, 124 Stat. 1376, prohibited enforcement of the parties’
arbitration agreement.
The district court denied Carrington’s motion to compel
arbitration. The district court found that the parties had entered
into a valid agreement to arbitrate claims arising from Attix’s use
of Speedpay’s service and that Attix’s claims against Carrington
were covered by that agreement. But the district court ruled that
the Dodd-Frank Act prohibited enforcement of the parties’
arbitration agreement. The district court noted the provision of
the Speedpay terms and conditions directing that an arbitrator
decide “what is subject to arbitration,” but said that provision had
no application in this case.
On appeal, Carrington challenges the district court’s denial
of its motion to compel arbitration on two grounds. First,
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4 Opinion of the Court 20-13575
Carrington argues that the district court erred in even deciding
whether the Dodd-Frank Act prohibits enforcement of the parties’
arbitration agreement. Carrington asserts that, by agreeing that an
arbitrator would decide “what is subject to arbitration” and would
“rule on his or her own jurisdiction,” the parties agreed that an
arbitrator would decide such threshold arbitrability issues. Second,
Carrington argues that, in any case, the district court erred in
finding that the Dodd-Frank Act prohibits enforcement of the
parties’ arbitration agreement.
Carrington is right on the first point, which means the
second is not for us to decide. In the terms and conditions
governing Attix’s use of Speedpay’s service, Attix and Carrington
clearly and unmistakably agreed that an arbitrator would decide all
threshold questions about the arbitrability of Attix’s claims,
including whether their arbitration agreement is enforceable. Attix
argues that the parties agreed to arbitrate only some, but not all,
threshold arbitrability issues, but his interpretation of the parties’
agreement is unavailing. Moreover, although he claims that he
has, Attix has not specifically challenged the enforceability of the
parties’ agreement to arbitrate threshold questions about the
arbitrability of his claims. Attix’s Dodd-Frank Act challenge relates
only to the enforceability of the parties’ separate agreement to
arbitrate the merits of his claims, and the parties have agreed to
submit questions about the enforceability of that agreement to an
arbitrator. Thus, the arbitrability dispute in this case—i.e., whether
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20-13575 Opinion of the Court 5
the Dodd-Frank Act prohibits enforcement of the parties’
arbitration agreement—is for an arbitrator to decide.
After review and with the benefit of oral argument, we
reverse and remand with instructions to compel arbitration and
stay proceedings in the district court.
I. Background
In 2008, William Attix took out a home mortgage loan.
Later, after Attix defaulted, Carrington became his mortgage
servicer. In May 2020, Attix made a mortgage payment to
Carrington using Speedpay’s automated phone payment service.
When Attix dialed Speedpay’s line, Speedpay’s automated system
informed him that he would be charged a $10 convenience fee for
using Speedpay’s service. Through a telephonic prompt, Attix
agreed to pay the $10 fee.
Before Attix completed his mortgage payment, Speedpay’s
automated system informed him that “the terms and conditions
applicable to this payment are located at Speedpay.com/terms,”
and directed Attix to press 1 “to complete your transaction and
accept these terms.” The applicable terms and conditions located
on Speedpay’s website stated:
THIS PAYMENT SERVICE IS SUBJECT TO THE
FOLLOWING TERMS AND CONDITIONS.
Do not use or access this Website or Service if You do
not agree to be bound by these Terms and
Conditions.
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6 Opinion of the Court 20-13575
These Terms and Conditions (“Terms and
Conditions”) are in effect for all transactions
processed through this payments website
(“Website”) on or after May 9, 2019, and apply to and
govern Your access to and use of this Website, the
Service and all Alternative Channels. This payment
processing service is offered to You on behalf of your
Biller (“Service”).
. . . These Terms and Conditions also apply to Service
transactions, or Payments, made by or through any
“Alternative Payment Channels” including those
Payments initiated, or completed through, Integrated
Voice Response (IVR) systems, customer service
representatives, telephone, internet, or any other
means or mechanisms of Payment acceptance.
The Speedpay terms and conditions defined “User,” “You,”
and “Your” as “a user of this Website or any Alternative Payment
Channel, located in the U.S., who is making a payment to the
Biller.” They defined “Speedpay” as “Speedpay, an ACI
Worldwide company, and, as applicable, its affiliates and parent
company who support the Service.” And they defined “Biller” as
“the receiver of Your Payment, which is generally a business that
is a client of Speedpay that has authorized Speedpay to process
Payments from its customers.” 1
1
The parties agree that, when Attix made his mortgage payment using
Speedpay’s service, Carrington was the “Biller.”
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20-13575 Opinion of the Court 7
The Speedpay terms and conditions contained the following
arbitration provision:
Unless You opt out as set forth below, any dispute
arising from or relating to Service or your Payment(s)
shall be resolved by mandatory and binding
arbitration. The arbitrator shall also decide what is
subject to arbitration unless prohibited by law. The
arbitration will be administered by American
Arbitration Association (“AAA”) under its Consumer
Arbitration Rules, which are available at
https://www.adr.org/active-rules. You will be
responsible for up to $200 of the administration fees.
We, or the Arbitrator, may reduce this amount if you
demonstrate hardship. This agreement is governed
by the Federal Arbitration Act[,] 9 U.S.C. § 1 et seq.
(“FAA”), and any award shall be final and binding,
and may be entered as judgment in any court of
competent jurisdiction. Any arbitration shall take
place on an individual basis; class actions or
consolidation of arbitrations are not permitted. The
Arbitrator shall be required to follow applicable
substantive law and shall have no authority to deviate
therefrom. If any part of this paragraph is deemed
invalid, it shall not invalidate the other parts. If AAA
is unwilling or unavailable to administer the
arbitration, the parties or a court will select another
arbitrator in accordance with the FAA. You may opt
out of arbitration within 30 days after initiating a
Payment by calling (866) 316-3360. IF YOU DO NOT
OPT OUT, YOU WILL WAIVE ANY RIGHT TO A
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8 Opinion of the Court 20-13575
TRIAL BY JURY OR JUDGE IN COURT AND ANY
RIGHT TO PARTICIPATE IN A CLASS ACTION.[ 2]
(emphasis omitted).
The “Consumer Arbitration Rules” that the arbitration
provision referenced are a publicly available set of AAA rules for
arbitrating disputes arising from consumer contracts with
standardized arbitration clauses. See American Arbitration
Association, Consumer Arbitration Rules 6 (amended and effective
Sept. 1, 2014), adr.org/sites/default/files/Consumer-Rules-
Web.pdf. Arbitrations that proceed under the Consumer
Arbitration Rules are administered by the AAA and conducted by
a neutral arbitrator selected by either the parties or the AAA. See
id. R-1, R-15, R-16. Rule 14 of the Consumer Arbitration Rules—
the “Jurisdiction” section—provides that:
The arbitrator shall have the power to rule on his or
her own jurisdiction, including any objections with
respect to the existence, scope, or validity of the
arbitration agreement or to the arbitrability of any
claim or counterclaim.
Id. R-14(a).
On May 26, 2020—just a few days after he used Speedpay’s
service to make his mortgage payment—Attix filed a putative class
action suit against Carrington, asserting claims under the FDCPA
and Florida law. Attix alleged that Carrington violated those laws
2
Attix did not opt out of arbitration.
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20-13575 Opinion of the Court 9
by using its payment service provider to collect convenience fees
for mortgage payments made online or over the phone and then
retaining some or all of those convenience fees for itself. 3
After Attix filed suit, Carrington moved to compel
arbitration and stay proceedings in the district court. In its motion,
Carrington argued that Attix and Carrington were parties to the
terms and conditions governing Attix’s use of Speedpay’s service to
make his mortgage payment in May 2020; that Attix’s claims arose
from his use of Speedpay’s service; and that Attix’s claims were
therefore governed by the parties’ agreement to arbitrate “any
dispute arising from or relating to Service or your Payment(s).”
Carrington also argued that, by agreeing that “[t]he arbitrator shall
also decide what is subject to arbitration unless prohibited by law,”
and by incorporating the AAA’s rules for consumer arbitrations
into their agreement, the parties had agreed to “delegate” any
disputes about the arbitrability of Attix’s claims to an arbitrator. In
3
Although the substantive details of Attix’s claims are not relevant to this
appeal, by way of background, Attix alleged in his class action complaint that,
by collecting and retaining convenience fees for mortgage payments made
online or over the phone, Carrington violated the FDCPA’s prohibition
against “debt collector[s]” collecting fees incidental to principal debt
obligations that are not “expressly authorized by the agreement creating the
debt or permitted by law.” See 15 U.S.C. § 1692f(1). In his state-law counts,
Attix alleged that, when it collected and retained convenience fees, Carrington
also: (1) violated two Florida consumer protection statutes; and (2) breached
the terms of Attix’s mortgage loan agreement or, in the alternative, was
unjustly enriched.
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10 Opinion of the Court 20-13575
response, Attix argued that the parties’ agreement to arbitrate his
claims arising from his use of Speedpay’s service “violate[d] the
Dodd-Frank Act,” which “prohibits the use of arbitration
provisions or pre-dispute waivers of federal statutory causes of
action in connection with residential mortgages.”
The district court denied Carrington’s motion to compel
arbitration. The district court made several findings that, on
appeal, are undisputed: (1) Carrington was a party to the terms and
conditions governing Attix’s use of Speedpay’s service to make his
mortgage payment in May 2020; (2) in those terms and conditions,
the parties entered into a valid agreement to arbitrate claims
“arising from or relating to” Attix’s use of Speedpay’s service; and
(3) Attix’s claims against Carrington arose from his use of
Speedpay’s service and fell within the scope of the parties’
arbitration agreement. Even so, the district court denied
Carrington’s motion, finding that 15 U.S.C. § 1639c—a provision
of the Dodd-Frank Act setting out “minimum standards for
residential mortgage loans”—“prohibit[ed] arbitration” of Attix’s
claims. Subsection (e)(3) of that statute provides:
No provision of any residential mortgage loan or of
any extension of credit under an open end consumer
credit plan secured by the principal dwelling of the
consumer, and no other agreement between the
consumer and the creditor relating to the residential
mortgage loan or extension of credit referred to in
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20-13575 Opinion of the Court 11
paragraph (1),[ 4] shall be applied or interpreted so as
to bar a consumer from bringing an action in an
appropriate district court of the United States, or any
other court of competent jurisdiction, pursuant to
section 1640 of this title or any other provision of law,
for damages or other relief in connection with any
alleged violation of this section, any other provision
of this subchapter, or any other Federal law.
15 U.S.C. § 1639c(e)(3). The district court found that § 1639c(e)(3)
prohibited arbitration of Attix’s claims arising from his use of
Speedpay’s service to make his mortgage payment to Carrington.
In reaching that conclusion, the district court found that, under the
statute: (1) Attix was a “consumer”; (2) Carrington was a
“creditor”; and (3) the terms and conditions governing Attix’s use
of Speedpay’s service were an “agreement” between Attix and
Carrington “relating to” Attix’s residential mortgage loan.
Accordingly, the district court found that the Speedpay terms and
conditions were an “agreement between [a] consumer and [a]
creditor relating to [a] residential mortgage loan” under
4
“Paragraph (1)” is 15 U.S.C. § 1639c(e)(1), a related provision that states:
No residential mortgage loan and no extension of credit under
an open end consumer credit plan secured by the principal
dwelling of the consumer may include terms which require
arbitration or any other nonjudicial procedure as the method
for resolving any controversy or settling any claims arising out
of the transaction.
15 U.S.C. § 1639c(e)(1). Section 1639c(e)(1) is not at issue in this case.
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12 Opinion of the Court 20-13575
§ 1639c(e)(3). And, the district court ruled that, because
§ 1639c(e)(3) states that such agreements “shall [not] be applied or
interpreted so as to bar a consumer from bringing an action in an
appropriate district court of the United States,” the statute
prohibited arbitration of Attix’s claims.
Finally, the district court noted that the parties had agreed,
in the “delegation” clause of the Speedpay terms and conditions,
that an “arbitrator shall also decide what is subject to arbitration
unless prohibited by law.” But the district court declined to
consider whether questions about the arbitrability of Attix’s claims
were committed to an arbitrator’s review under that provision,
finding that “there [was] no bona fide dispute as to the scope of the
[parties’] arbitration agreement.”
Carrington timely appealed from the district court’s denial
of its motion to compel arbitration. 5
5
After Carrington filed its notice of appeal, it filed a motion in the district court
to stay proceedings in that court pending appeal. See Blinco v. Green Tree
Servicing, LLC, 366 F.3d 1249, 1253 (11th Cir. 2004) (“When a litigant files a
motion to stay litigation in the district court pending an appeal from the denial
of a motion to compel arbitration, the district court should stay the litigation
so long as the appeal is non-frivolous.”). In that motion, Carrington argued,
among other things, that the district court’s decision to disregard the
“delegation” clause in the Speedpay terms and conditions “conflict[ed] with
controlling Supreme Court precedent requiring courts to rigorously enforce
delegation clauses,” and that the district court had erred in deciding whether
the Dodd-Frank Act prohibited arbitration of his claims, rather than
compelling arbitration so that an arbitrator could decide that issue.
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II. Standard of Review
We review the denial of a motion to compel arbitration de
novo. Jenkins v. First Am. Cash Advance of Ga., 400 F.3d 868, 873
(11th Cir. 2005).
III. Discussion
In this appeal, we determine whether an arbitrator must
decide if the parties’ agreement to arbitrate claims arising from
Attix’s use of Speedpay’s service is enforceable under the Dodd-
The district court denied Carrington’s motion to stay proceedings pending
appeal. As to Carrington’s argument that it had erred in deciding whether the
Dodd-Frank Act prohibited arbitration of his claims, the district court said:
Defendant argues that the appeal is non-frivolous because the
[parties’] Arbitration Agreement [in the Speedpay terms and
conditions] contained a delegation clause and under Supreme
Court precedent, a court may not decide an arbitrability
question that the parties have delegated to an arbitrator. But
this argument ignores Dodd-Frank. The delegation clause [in
the Speedpay terms and conditions] provides that “[t]he
arbitrator shall also decide what is subject to arbitration unless
prohibited by law.” The delegation clause therefore evinces a
clear intent for the Court, not the arbitrator, to determine
whether arbitration of any claims is “prohibited by law,”
which is precisely what the Court did in this case.
(quotation and citations omitted; emphasis in original).
After the district court denied Carrington’s motion to stay proceedings
pending appeal, Carrington moved in this Court for the same relief. We found
that Carrington’s appeal is not frivolous and granted Carrington’s motion to
stay proceedings in the district court in a summary order.
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Frank Act. Carrington argues that, in the Speedpay terms and
conditions, the parties clearly and unmistakably agreed to delegate
questions about the arbitrability of Attix’s claims to an arbitrator,
including questions about whether the parties’ agreement to
arbitrate those claims is enforceable. In response, Attix challenges
the scope of the parties’ delegation agreement, arguing that the
parties agreed to delegate some, but not all, questions of
arbitrability to an arbitrator. Attix also argues that his statutory
challenge based on the Dodd-Frank Act represents a “specific
challenge” to the enforceability of the parties’ agreement to
delegate threshold arbitrability issues. 6
We find that, in the Speedpay terms and conditions, Attix
and Carrington clearly and unmistakably agreed to delegate all
questions of arbitrability to an arbitrator, including the arbitrability
dispute in this case—i.e., whether the parties’ agreement to
arbitrate Attix’s claims is enforceable under the Dodd-Frank Act.
Moreover, Attix’s Dodd-Frank Act challenge relates only to the
enforceability of the parties’ agreement to arbitrate the merits of
his claims, not the enforceability of the parties’ separate agreement
to arbitrate the arbitrability of his claims, and is therefore an issue
for the arbitrator to decide. Thus, we enforce the parties’
6
The second issue in this appeal is whether the Dodd-Frank Act prohibits
enforcement of the parties’ agreement to arbitrate Attix’s claims. Because we
resolve the first issue in this appeal in Attix’s favor, we do not reach the second
issue, which is for an arbitrator to decide.
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agreement as written and direct the district court to compel
arbitration.
We begin with settled principles of law. The Federal
Arbitration Act (FAA), 9 U.S.C. § 1 et seq., provides that:
A written provision in . . . a contract evidencing a
transaction involving commerce to settle by
arbitration a controversy thereafter arising out of
such contract or transaction . . . 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 “reflect[s] both a liberal policy favoring
arbitration, and the fundamental principle that arbitration is a
matter of contract.” AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 339 (2011) (citation and quotations omitted). “In line with
these principles, courts must place arbitration agreements on an
equal footing with other contracts, and enforce them according to
their terms.” Id. (citation omitted). Under the FAA, “any doubts
concerning the scope of arbitrable issues should be resolved in
favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24–25 (1983).
The FAA “also establishes procedures by which federal
courts implement [its] substantive rule.” Rent-A-Center, W., Inc.
v. Jackson, 561 U.S. 63, 68 (2010). A party to an arbitration
agreement may move “for an order directing that such arbitration
proceed in the manner provided for in such agreement” under § 4
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16 Opinion of the Court 20-13575
of the FAA, and for a stay of proceedings in federal court pending
the outcome of arbitration under § 3. 7 See 9 U.S.C. §§ 3–4. Before
enforcing an arbitration agreement, the court should ensure that
the agreement was formed and that it applies to the dispute at
hand. See id. § 4 (the court must compel arbitration “upon being
satisfied that the making of the agreement for arbitration or the
failure to comply therewith is not in issue”); id. § 3 (the court must
stay proceedings in federal court “upon being satisfied that the
issue involved in such suit or proceeding is referable to arbitration
under such an agreement”). The court should also determine
whether, under § 2, there are any “‘grounds as exist at law or in
equity for the revocation of any contract’” that “invalidat[e]” the
arbitration agreement or “permit[] [it] . . . to be declared
unenforceable.” Concepcion, 563 U.S. at 339 (quoting 9 U.S.C.
§ 2). If the parties’ arbitration agreement applies to their dispute
and no grounds render it invalid or unenforceable, the court “shall”
compel arbitration and stay proceedings in federal court. 9 U.S.C.
§§ 3–4.
7
The FAA’s provisions “do not themselves support federal jurisdiction.”
Badgerow v. Walters, 142 S. Ct. 1310, 1316 (2022); cf. id. at 1315–18 (describing
how, when a defendant presents a standalone petition to compel arbitration
in federal court under § 4 of the FAA, the district court may “look through” to
the “underlying substantive dispute” to assess its jurisdiction). In this case,
there is no dispute that the federal courts have subject-matter jurisdiction.
Carrington moved to compel arbitration after Attix asserted an FDCPA claim
raising a federal question. See 28 U.S.C. § 1331.
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The classic arbitration agreement is an agreement to
arbitrate any claims arising from a contract between two parties.
See, e.g., Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1214–
15 (11th Cir. 2011) (addressing an agreement to arbitrate “any and
all disputes, claims, or controversies whatsoever . . . relating to or
in any way arising out of or connected with” an employment
contract). In other words, the classic arbitration agreement is an
agreement to arbitrate the “merits” of the parties’ claims if a
dispute later arises between them. See Henry Schein, Inc. v. Archer
& White Sales, Inc., 139 S. Ct. 524, 527, 529 (2019). These
agreements to arbitrate are typically nested within the parties’
larger contract, which may involve employment, goods or
services, insurance, or another type of transaction. See, e.g.,
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 442–43
(2006) (construing an arbitration agreement contained within a
contract for check cashing services).
Sometimes, parties agree not only to arbitrate the merits of
any claims that arise from their contract, but also to arbitrate any
“threshold” or “gateway” questions about the “arbitrability” of
those claims, such as questions about the “enforceability, scope,
[or] applicability” of the parties’ agreement to arbitrate their
claims. Jones v. Waffle House, Inc., 866 F.3d 1257, 1264 (11th Cir.
2017). By default, a court would normally decide threshold
disputes about whether a party’s claims are arbitrable. See U.S.
Nutraceuticals, LLC v. Cyanotech Corp., 769 F.3d 1308, 1311 (11th
Cir. 2014) (“[O]rdinarily, the question of arbitrability is undeniably
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an issue for judicial determination.” (quotation omitted and
alteration adopted)). But parties are free to have an arbitrator
decide their threshold disputes instead. See Henry Schein, 139 S.
Ct. at 527 (“[P]arties [may] agree by contract that an arbitrator,
rather than a court, will resolve threshold arbitrability questions.”).
An agreement to arbitrate threshold arbitrability issues is
often called a “delegation” agreement, because it delegates the
resolution of disputes about the arbitrability of the parties’ claims
to an arbitrator. See Rent-A-Center, 561 U.S. at 68. A delegation
agreement “is simply an additional, antecedent agreement the
party seeking arbitration asks the federal court to enforce, and the
FAA operates on this additional arbitration agreement just as it
does on any other.” Id. at 70; see also New Prime Inc. v. Oliveira,
139 S. Ct. 532, 538 (2019) (“A delegation clause is merely a
specialized type of arbitration agreement.”). As with any
arbitration agreement, before enforcing a delegation agreement,
the court should ensure that the agreement was formed, that it
applies to the dispute at hand, and that no grounds render it invalid
or unenforceable.8 See Rent-A-Center, 561 U.S. at 69 (citing 9
U.S.C. §§ 2–4).
8
Although it is the court’s obligation to determine, before enforcing a
delegation agreement, that no grounds render the delegation agreement
invalid or unenforceable, see 9 U.S.C. § 2, it is the parties’ obligation to tell the
court what those grounds might be. In other words, it is up to the parties to
specifically challenge the delegation agreement’s validity or enforceability.
See Rent-A-Center, 561 U.S. at 70–72. More on that later.
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Further, when analyzing whether the parties to a contract
have agreed to arbitrate threshold questions of arbitrability, we
“reverse[]” the FAA’s standard “presumption” favoring arbitration.
JPay, Inc. v. Kobel, 904 F.3d 923, 929 (11th Cir. 2018). “Courts
should not assume that the parties agreed to arbitrate arbitrability
unless there is clear and unmistakable evidence that they did so.”
First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)
(quotation omitted). Thus, unlike with agreements to arbitrate the
merits of the parties’ claims arising from their contract, we resolve
ambiguities in an agreement to arbitrate questions about the
arbitrability of those claims in favor of the party opposing
arbitration. See id. at 944–45. However, if the court finds that the
parties have clearly and unmistakably agreed to delegate questions
of arbitrability to an arbitrator, it “must respect the parties’ decision
as embodied in the contract.” Henry Schein, 139 S. Ct. at 531. “Just
as a court may not decide a merits question that the parties have
delegated to an arbitrator, a court may not decide an arbitrability
question that the parties have delegated to an arbitrator.” Id. at
530.
Until recently, certain courts routinely decided questions of
arbitrability themselves, even when the parties had agreed to
delegate those questions to an arbitrator, if the courts found that
the arguments in favor of requiring arbitration of the parties’ claims
were “wholly groundless.” See id. at 527–28. In Henry Schein, the
Supreme Court struck down this “wholly groundless” exception to
the FAA, noting that it “short-circuit[s] the process” to which the
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parties have agreed. Id. The Court made clear that the FAA leaves
no room for such judicial maneuvers:
We must interpret the [Federal Arbitration] Act as
written, and the Act in turn requires that we interpret
the contract as written. When the parties’ contract
delegates the arbitrability question to an arbitrator, a
court may not override the contract. In those
circumstances, a court possesses no power to decide
the arbitrability issue.
Id. at 529.
With these principles of law in mind, we proceed to our
analysis of whether an arbitrator should decide if the parties’
agreement to arbitrate claims arising from Attix’s use of Speedpay’s
service is enforceable under the Dodd-Frank Act. We analyze this
issue in two parts. First, we consider whether the parties clearly
and unmistakably agreed to delegate questions of arbitrability to an
arbitrator. We find that they did. Second, we consider whether
Attix has specifically challenged the enforceability of the parties’
delegation agreement. We find that he has not. Thus, we enforce
the parties’ delegation agreement as written and compel
arbitration.
A. The Parties Clearly and Unmistakably Agreed to
Delegate Questions of Arbitrability to an Arbitrator
We first consider whether Attix and Carrington clearly and
unmistakably agreed to delegate questions of arbitrability to an
arbitrator. We find that they did. In two separate provisions of the
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20-13575 Opinion of the Court 21
Speedpay terms and conditions—an express delegation clause and
an incorporation of the AAA’s rules for consumer arbitrations—the
parties clearly and unmistakably agreed to delegate questions of
arbitrability. Attix challenges the scope of the parties’ delegation
agreement, arguing that the parties agreed to delegate only some
questions of arbitrability to an arbitrator, but not others. But
Attix’s reading of the parties’ delegation agreement is unnatural,
ungrammatical, and contrary to the normal way that delegation
agreements function. By its plain terms, the parties’ delegation
agreement sends all questions of arbitrability to an arbitrator,
including the arbitrability dispute in this case.
We start with the text of the arbitration section in the
Speedpay terms and conditions. In relevant part, that section
states:
[A]ny dispute arising from or relating to Service or
your Payment(s) shall be resolved by mandatory and
binding arbitration. The arbitrator shall also decide
what is subject to arbitration unless prohibited by
law. The arbitration will be administered by
American Arbitration Association (“AAA”) under its
Consumer Arbitration Rules, which are available at
https://www.adr.org/active-rules.
(emphasis omitted).
Each sentence in this paragraph is significant. In the first
sentence—“any dispute arising from or relating to Service or your
Payment(s) shall be resolved by mandatory and binding
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22 Opinion of the Court 20-13575
arbitration”—the parties agreed to arbitrate Attix’s claims arising
from his use of Speedpay’s service. There is no dispute about what
this provision means or its application in this case. On appeal, the
parties agree that, in this provision, they agreed to arbitrate Attix’s
claims arising from his use of Speedpay’s service, including the
claims Attix has asserted against Carrington in this suit.
The second and third sentences—a clause directing that an
arbitrator “shall also decide what is subject to arbitration,”
followed by an incorporation of the AAA’s rules for consumer
arbitrations—constitute the parties’ delegation agreement. In each
of these two provisions, Attix and Carrington clearly and
unmistakably agreed to delegate questions of arbitrability to an
arbitrator. Attix does not dispute that the parties agreed to delegate
at least some questions of arbitrability. However, he disputes the
scope of the parties’ delegation agreement, arguing that the parties
agreed to send most, but not all, questions of arbitrability to an
arbitrator. Below, we construe first the parties’ agreement that an
arbitrator “shall also decide what is subject to arbitration”—i.e.,
their “express” delegation clause—and then construe the parties’
incorporation of the AAA rules. We then evaluate, and reject,
Attix’s assertion that the parties agreed to delegate only some
questions of arbitrability. In fact, the parties clearly and
unmistakably agreed to delegate all questions of arbitrability.
First, we consider the parties’ express delegation clause. The
Speedpay terms and conditions state: “The arbitrator shall also
decide what is subject to arbitration unless prohibited by law.”
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20-13575 Opinion of the Court 23
This provision contains classic delegation language. By
committing issues about “what is subject to arbitration” to an
arbitrator’s review, the provision clearly and unmistakably sends
threshold arbitrability disputes to an arbitrator instead of a court.
We have previously interpreted similar contract language
providing that an arbitrator would decide “[a]ny issue regarding
whether a particular dispute or controversy is . . . subject to
arbitration” as an agreement to delegate questions of arbitrability
to an arbitrator. See Given v. M&T Bank Corp., 674 F.3d 1252,
1255–56 (11th Cir. 2012) (finding that, by agreeing to arbitrate
issues about “whether a particular dispute or controversy is . . .
subject to arbitration,” the parties agreed to arbitrate threshold
questions about “whether the arbitration agreement covers a
particular controversy” and “whether [the] claims are within the
scope of the arbitration agreement” (quotation omitted and
alterations adopted)); see also Jones, 866 F.3d at 1267 (noting that
the provision in Given “manifested a clear and unmistakable intent
to arbitrate gateway issues” (citing Given, 674 F.3d at 1255)).
Next, we consider the parties’ incorporation of the AAA
rules for consumer arbitrations. The Speedpay terms and
conditions state: “The arbitration will be administered by
American Arbitration Association (“AAA”) under its Consumer
Arbitration Rules, which are available at
https://www.adr.org/active-rules.” Rule 14(a) of the AAA’s
Consumer Arbitration Rules—the “Jurisdiction” section—
provides:
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24 Opinion of the Court 20-13575
The arbitrator shall have the power to rule on his or
her own jurisdiction, including any objections with
respect to the existence, scope, or validity of the
arbitration agreement or to the arbitrability of any
claim or counterclaim.
By incorporating this AAA rule about the arbitrator’s
“power to rule on his or her own jurisdiction” into their
agreement, Attix and Carrington clearly and unmistakably agreed
to arbitrate threshold arbitrability disputes. We do not interpret
this provision in first light. We have seen this precise language
before, holding, in at least two prior cases, that an “incorporation
of AAA rules giving an arbitrator the power to rule on his or her
own jurisdiction constitutes a clear and unmistakable delegation of
questions of arbitrability.” JPay, 904 F.3d at 937–39 (interpreting
identical language in two sets of AAA rules “as clearly and
unmistakably evincing an intent to delegate questions of
arbitrability”); Terminix Int’l Co. v. Palmer Ranch Ltd. P’ship, 432
F.3d 1327, 1332–33 (11th Cir. 2005) (stating that, by incorporating
identical language in the AAA’s rules for commercial arbitrations
into their agreement, “the parties clearly and unmistakably agreed
that the arbitrator should decide whether the arbitration clause is
valid”). In fact, we have held that incorporating the AAA’s
jurisdictional rules into an agreement constitutes clear and
unmistakable evidence of the parties’ intent to delegate questions
of arbitrability even if no other delegation language appears
elsewhere in the contract. See JPay, 904 F.3d at 939, 942 (“[E]ither
JPay’s incorporation of AAA rules or its express delegation clause
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20-13575 Opinion of the Court 25
would have been enough, on its own, to delegate the question of
[arbitrability at issue].”). Here, of course, clear delegation language
does appear elsewhere in the parties’ agreement. Thus, in two
separate provisions of their agreement—an express delegation
clause and an incorporation of the AAA rules for consumer
arbitrations—Attix and Carrington clearly and unmistakably
agreed to submit questions of arbitrability to an arbitrator.
We now consider Attix’s challenge to the scope of the
parties’ delegation agreement. Attix does not dispute that, in both
the express delegation clause and the incorporation of the AAA
rules for consumer arbitrations, the parties agreed to delegate
questions of arbitrability to an arbitrator. However, Attix argues
that the delegation has limited scope, and that it does not apply to
the arbitrability dispute in this case.
Attix bases his challenge to the scope of the parties’
delegation agreement on the language of the parties’ express
delegation clause. That clause states, again, that “[t]he arbitrator
shall also decide what is subject to arbitration unless prohibited by
law.” Attix argues that we should read this provision as sending
questions of arbitrability to an arbitrator, except for questions
about whether arbitration of the parties’ claims is “prohibited by
law.” The district court read the delegation clause the same way,
taking the view that the clause “evince[d] a clear intent for the
Court, not the arbitrator, to determine whether arbitration of any
claims is ‘prohibited by law.’” In essence, Attix asserts that the
parties’ delegation clause represents a “partial” delegation of most,
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26 Opinion of the Court 20-13575
but not all, questions of arbitrability to an arbitrator—and,
critically, that it does not delegate the arbitrability dispute in this
case, namely whether the Dodd-Frank Act prohibits enforcement
of the parties’ agreement to arbitrate Attix’s claims.
To understand Attix’s “partial delegation” interpretation of
the parties’ delegation clause, some background on the different
types of arbitrability issues is in order. Arbitrability issues involve
“fundamental questions that will determine whether a claim will
be brought before an arbitrator.” JPay, 904 F.3d at 930. However,
questions of arbitrability do not come in only one shape. There are
a few basic kinds. Some arbitrability questions are about the
“scope” or “applicability” of the parties’ arbitration agreement—
i.e., what set of disputes the arbitration agreement covers, and
whether it governs the particular dispute at hand. See, e.g., Henry
Schein, 139 S. Ct. at 528 (discussing an arbitrability dispute about
whether an agreement to arbitrate claims, “except for actions
seeking injunctive relief,” required arbitration of the plaintiff’s
claims seeking injunctive relief “only in part”); Princess Cruise
Lines, 657 F.3d at 1213–15, 1219–21 (analyzing whether a former
cruise line employee’s tort and maritime claims “f[e]ll within the
scope of the arbitration provision”). Other arbitrability questions
are about the “validity” or “enforceability” of an arbitration
agreement—i.e., whether the parties have entered into a legally
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20-13575 Opinion of the Court 27
operative arbitration agreement that is enforceable under law. 9
See, e.g., Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359,
1367–68, 1377–79 (11th Cir. 2005) (analyzing whether an
arbitration agreement was unconscionable, and therefore
unenforceable, under Georgia contract law); Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 27–35 (1991)
(considering whether the Age Discrimination in Employment Act
(ADEA) prohibited enforcement of an agreement to arbitrate the
plaintiff’s age-discrimination claims). Everyone agrees that the
arbitrability dispute in this case—whether the Dodd-Frank Act
9
Although we need not delve deeply into the distinction between the validity
and enforceability of an arbitration agreement in this appeal, we note that
there appears to be a subtle, but material, distinction between the two
concepts. Validity, the Supreme Court has indicated, is about “what it takes
to enter into” a legally operative arbitration agreement. Kindred Nursing Ctrs.
Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1428 (2017); see also id. (noting that
“duress” issues, which “involve[] unfair dealing at the contract formation
stage,” relate to an arbitration agreement’s “initial validity” (quotations
omitted and alteration adopted)). And enforceability is about whether the law
allows for the enforcement of a validly formed arbitration agreement. See id.(contrasting rules “finding arbitration contracts invalid because improperly
formed” and rules “refusing to enforce those agreements once properly
made”).
We leave an in-depth examination of the differences between validity and
enforceability for another day. Whatever the precise demarcation may be,
there is no dispute that the arbitrability issue in this case is about
enforceability. On appeal, Attix does not challenge the district court’s finding
that, in the Speedpay terms and conditions, Attix and Carrington entered into
a valid agreement to arbitrate his claims. Instead, Attix asserts that the parties’
agreement to arbitrate his claims is unenforceable under the Dodd-Frank Act.
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28 Opinion of the Court 20-13575
prohibits enforcement of the parties’ agreement to arbitrate Attix’s
claims—is a question about the “enforceability” of the parties’
arbitration agreement.10
With this understanding of the basic types of arbitrability
issues in mind, we return to Attix’s challenge to the scope of the
parties’ delegation agreement. Attix interprets the parties’ express
delegation clause to provide for a “partial” delegation of questions
of arbitrability. In Attix’s reading, the delegation clause has two
main parts: an initial phrase delegating questions of arbitrability to
an arbitrator, and a qualifying phrase limiting that delegation’s
scope. First, the initial phrase: “The arbitrator shall also decide
what is subject to arbitration.” On its face, this phrase would
appear to commit any and all questions of arbitrability to an
arbitrator’s review. Attix does not assert that it does not, at least in
isolation. Instead, Attix argues that the second part of the
delegation clause—“unless prohibited by law”—qualifies the scope
of the first part’s delegation, pulling certain arbitrability issues back
into the court’s purview.
10
The types of arbitrability questions we have identified do not represent an
exhaustive list. For example, the availability of class proceedings in arbitration
is yet another type of threshold arbitrability issue. See JPay, 904 F.3d at 927
(stating that “the availability of class arbitration” is “the kind of gateway
question that determines the type of dispute that will be arbitrated”). We
intend only to set out the major distinctions among types of arbitrability
questions as applicable to this appeal.
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20-13575 Opinion of the Court 29
And how exactly does Attix think that the second part of the
delegation clause qualifies the delegation? By reserving, he says,
questions about whether the arbitration of his claims is “prohibited
by law”—in other words, questions about whether the parties’
agreement to arbitrate his claims is unenforceable—for judicial
review. Under Attix’s reading of the delegation clause, threshold
issues about the scope of the parties’ agreement to arbitrate his
claims, or about whether that agreement applies to a particular
dispute, would presumably go to an arbitrator, under the first part
of the clause providing that an “arbitrator shall also decide what is
subject to arbitration.” But threshold issues about whether the
parties’ arbitration agreement is enforceable would be allocated to
judicial review, under the “unless prohibited by law” language in
the second part of the clause. Thus, Attix asks the Court to
conclude that most questions of arbitrability are delegated under
the delegation clause, but any arbitrability dispute of the form
“Law X makes the arbitration agreement unenforceable” is a
question for the court.
Were we to adopt Attix’s reading of the parties’ delegation
clause, we agree with Attix about what would follow: the
delegation clause would function as a “partial” delegation sending
most questions of arbitrability to an arbitrator, but not questions
about enforceability, such as the parties’ dispute about whether the
Dodd-Frank Act renders their agreement to arbitrate Attix’s claims
unenforceable. That dispute would be for the court to decide.
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30 Opinion of the Court 20-13575
However, we do not adopt Attix’s reading of the delegation
clause. The plain and natural reading of the clause is that all
questions of arbitrability are delegated to an arbitrator—including
questions about whether the parties’ arbitration agreement is
enforceable—unless the law prohibits the delegation of threshold
arbitrability issues itself. See EEOC v. Waffle House, Inc., 534 U.S.
279, 294 (2002) (noting that, when interpreting an arbitration
agreement, we rely on “the plain text of the contract”). Unlike
Attix, we do not interpret the parties’ delegation clause as carving
out certain arbitrability issues from the arbitrator’s domain. When
it directs that an “arbitrator shall also decide what is subject to
arbitration,” we find that the delegation clause sends all questions
of arbitrability to an arbitrator without limitation. And what about
the clause’s “unless prohibited by law” language? That phrase
imposes an unremarkable condition on the parties’ otherwise-
unqualified agreement to delegate questions of arbitrability: i.e.,
simply that delegation will not occur if the law says it cannot.
This plain and natural reading of the parties’ delegation
clause—that all questions of arbitrability are delegated to an
arbitrator, unless the law prohibits that delegation—aligns with
ordinary rules of grammar. See Niz-Chavez v. Garland, 141 S. Ct.
1474, 1482 (2021) (“[W]hen it comes to discerning the ordinary
meaning of words, there are perhaps few better places to start than
rules governing their usage.”). Consider the word “unless” in the
delegation clause—which, again for reference, states that “[t]he
arbitrator shall also decide what is subject to arbitration unless
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20-13575 Opinion of the Court 31
prohibited by law.” “Unless” is a subordinating conjunction. See
The Chicago Manual of Style ¶ 5.201 (17th ed. 2017). “A
subordinating conjunction connects clauses of unequal
grammatical rank,” “introduc[ing] a clause that is dependent on the
independent clause.” Id. ¶ 5.200. The application of this basic rule
to the delegation clause is commonplace and clear. In the parties’
delegation clause, the independent clause is the complete sentence
preceding the conjunction: “The arbitrator shall also decide what
is subject to arbitration.” The dependent clause is the fragment
following the conjunction: “prohibited by law.” And the
conjunction connects the two, indicating that the event the first
clause describes—the delegation of questions of arbitrability to an
arbitrator—will occur “unless” the law prohibits it.
Attix’s reading of the delegation clause, on the other hand—
that questions of arbitrability are delegated to an arbitrator, unless
the law prohibits arbitration of the parties’ claims —is strained,
odd, and contrary to the rules of grammar. Under Attix’s reading
of the delegation clause, “unless” would, it appears, connect the
dependent phrase “prohibited by law” to only a single isolated
word on the other side of the conjunction, “arbitration,” chopping
that word off from the rest of the clause in which it appears.
Grammatically, that reading makes no sense. Thus, to make his
interpretation of the delegation clause work, Attix has to subtly add
extra words to it, so that, rather than provide that an “arbitrator
shall also decide what is subject to arbitration unless prohibited by
law,” it would provide that an “arbitrator shall also decide what is
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32 Opinion of the Court 20-13575
subject to arbitration unless arbitration is prohibited by law.” But
there is, of course, a much simpler way to make the delegation
clause mean what Attix wants it to mean: by actually adding the
words to the contract. If the parties had intended for an arbitrator
to decide “what is subject to arbitration unless arbitration is
prohibited by law,” the delegation clause presumably would have
simply said exactly that. Without the extra words, the clear and
unmistakable meaning of the clause is the one we have laid out: all
questions of arbitrability are delegated to an arbitrator, as long as
the law does not prohibit the delegation of threshold arbitrability
issues. 11
Finally, we note that Attix’s “partial delegation”
interpretation of the parties’ agreement, aside from being
unnatural and contrary to the rules of grammar, conflicts with how
11
Attix argues that, because there are two competing readings of the
delegation clause, the clause is therefore ambiguous, and we should resolve
the ambiguity in his favor. Because we require “clear and unmistakable
evidence” that “the parties agreed to arbitrate arbitrability,” First Options of
Chicago, 514 U.S. at 944–45, if the parties’ delegation clause were ambiguous,
we would “presume that a court w[ould] decide arbitrability.” JPay, 904 F.3d
at 930.
But we find no ambiguity in the parties’ delegation clause. “A contract term
is ambiguous if reasonably susceptible to more than one interpretation.”
Orkin Exterminating Co., Inc. v. FTC, 849 F.2d 1354, 1360 (11th Cir. 1988)
(quotation omitted). While Attix may interpret the delegation clause
differently than we have, his reading is not reasonable. By its plain terms, the
delegation clause commits all questions of arbitrability to an arbitrator’s
review.
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20-13575 Opinion of the Court 33
delegation agreements typically work. We have noted that
questions of arbitrability “are typically delegated or preserved as a
group,” and that both the Supreme Court and this Court have
“spoken of questions of arbitrability as a unitary category.” JPay,
904 F.3d at 943. We have not, to our knowledge, ever seen a
“partial” delegation agreement in the wild. Nor does Attix say that
he has, or cite any examples. That is not to say, of course, that a
“partial” delegation agreement could not exist. Parties may
structure their arbitration agreements as they like. See Lamps Plus,
Inc. v. Varela, 139 S. Ct. 1407, 1416 (2019) (noting that “[p]arties
may generally shape [arbitration] agreements to their liking by
specifying,” among other things, “the issues subject to
arbitration”). If parties wish to structure their contracts to delegate
some questions of arbitrability to an arbitrator but not others, they
are free to do so. But the parties in this case did not. This appeal
involves a garden-variety delegation agreement committing all
questions of arbitrability to an arbitrator’s review. Thus, the
arbitrability dispute in this case—i.e., whether the parties’
agreement to arbitrate Attix’s claims is enforceable under the
Dodd-Frank Act—is a question for the arbitrator.
B. Attix Has Not Specifically Challenged the
Enforceability of the Delegation Agreement
We next consider whether Attix has specifically challenged
the enforceability of the parties’ delegation agreement. We find
that he has not. When, as here, a contract contains a delegation
agreement, challenges to the validity or enforceability of the
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34 Opinion of the Court 20-13575
parties’ separate agreement to arbitrate the merits of their claims
are committed to an arbitrator’s review. Thus, to overcome a
delegation agreement, a party must challenge the validity or
enforceability of the parties’ precise agreement to arbitrate
threshold arbitrability issues. Attix claims that he has specifically
challenged the parties’ delegation agreement. In his statutory
challenge based on the Dodd-Frank Act, however, Attix disputes
only the enforceability of the parties’ agreement to arbitrate his
claims arising from his use of Speedpay’s service. And the
enforceability of that agreement is, under the parties’ separate
delegation agreement, a threshold issue for an arbitrator to decide.
We begin by setting out the legal principles governing the
interplay between what we will call “primary” arbitration
agreements—i.e., agreements to arbitrate the merits of claims
arising from a contract—and delegation agreements. Recall that
§ 2 of the FAA says written arbitration agreements “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.
Under § 2, a party may challenge an arbitration agreement’s
validity or enforceability based on “generally applicable contract
defenses, such as fraud, duress, or unconscionability.” Rent-A-
Center, 561 U.S. at 68 (quotation omitted). Or, a party may
challenge an arbitration agreement’s enforceability by asserting
that a federal statute outside the FAA precludes arbitration. See,
e.g., Gilmer, 500 U.S. at 27–35 (considering a challenge to the
enforceability of an arbitration agreement under the ADEA); Epic
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20-13575 Opinion of the Court 35
Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1623–27 (2018) (evaluating
whether the National Labor Relations Act prohibited enforcement
of class action waivers in certain arbitration agreements); see also
CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012) (noting
that “the FAA’s mandate” may be “overridden by a contrary
congressional command” (quotation omitted)). When the parties’
contract includes no delegation agreement, the operation of these
rules is fairly straightforward: the court simply decides whether
there is either a generally applicable contract defense or a federal
statute outside the FAA that makes the parties’ agreement to
arbitrate their claims invalid or unenforceable. See, e.g., Bess v.
Check Express, 294 F.3d 1298, 1306–09 (11th Cir. 2002) (analyzing
whether an arbitration agreement was unconscionable, and
therefore unenforceable, under Alabama law).
When the parties’ contract includes a delegation agreement,
the situation is different. A delegation agreement commits
questions of arbitrability to an arbitrator’s review, including
questions about the validity or enforceability of the parties’
primary arbitration agreement. See, e.g., JPay, 904 F.3d at 942–43
(noting that, by incorporating the AAA’s delegation rules into their
agreement, parties thereby agreed to arbitrate questions about the
validity or enforceability of their agreement to arbitrate their
claims (citing Terminix, 432 F.3d at 1329)). Courts enforce
agreements to arbitrate the validity or enforceability of primary
arbitration agreements as a matter of common contractual sense.
“[W]here the parties have unambiguously agreed to arbitrate
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36 Opinion of the Court 20-13575
gateway questions, they are entitled to have the arbitrator resolve
those questions.” Jones, 866 F.3d at 1270–71.
But, there is another wrinkle. An agreement to arbitrate
questions about the validity or enforceability of a primary
arbitration agreement is itself an arbitration agreement. See Rent-
A-Center, 561 U.S. at 69 (noting that a delegation agreement “is
simply an additional, antecedent agreement . . . and the FAA
operates on this additional arbitration agreement just as it does on
any other”). It is an agreement to arbitrate the arbitrability of the
parties’ claims, nested within another agreement to arbitrate the
merits of those claims. See Henry Schein, 139 S. Ct. at 529. For the
purpose of assessing its validity or enforceability, a delegation
agreement is “severable” from the primary arbitration agreement
in which it is contained. See New Prime, 139 S. Ct. at 538 (stating
that, “under the severability principle, we treat a challenge to the
validity of . . . a delegation clause . . . separately from a challenge
to the validity of the entire contract in which it appears”); see also
Parm v. Nat’l Bank of Cal., N.A., 835 F.3d 1331, 1334 (11th Cir.
2016) (“Delegation clauses are severable from the underlying
agreement to arbitrate.”). And while, under the delegation
agreement, challenges to the primary arbitration agreement’s
validity or enforceability are off-limits to the courts, see JPay, 904
F.3d at 942–43, a court must always consider a validity or
enforceability challenge that is “specific” to the delegation
agreement before enforcing it. See Rent-A-Center, 561 U.S. at 70–
71 (noting that “a party’s challenge to another provision of the
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20-13575 Opinion of the Court 37
contract, or to the contract as a whole, does not prevent a court
from enforcing a specific agreement to arbitrate” threshold
arbitrability issues, but that, “[i]f a party challenges the validity
under § 2 [of the FAA] of the precise [delegation] agreement . . . the
federal court must consider the challenge before ordering
compliance with that agreement”).
Thus, in line with the Supreme Court’s precedents, we have
stated the following rule:
[W]here an arbitration agreement contains a
delegation provision—committing to the arbitrator
the threshold determination of whether the
agreement to arbitrate is enforceable—the courts
only retain jurisdiction to review a challenge to that
specific provision.
Parnell v. CashCall, Inc., 804 F.3d 1142, 1144 (11th Cir. 2015); see
also Parm, 835 F.3d at 1334–35 (noting that, when an arbitration
agreement “contains a delegation clause, our review is limited, at
least initially, to . . . direct challenges to that clause”). Under this
rule, if a party successfully challenges the validity or enforceability
of a delegation agreement, the court should proceed to resolve any
challenges to the validity or enforceability of the parties’ primary
arbitration agreement, per the default rule assigning threshold
arbitrability issues to the court’s review. See Parm, 835 F.3d at 1335
(noting that, “if we determine that the delegation clause is itself
invalid or unenforceable,” we “may . . . review the enforceability
of the arbitration agreement as a whole”); U.S. Nutraceuticals, 769
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38 Opinion of the Court 20-13575
F.3d at 1311 (“[O]rdinarily, the question of arbitrability is
undeniably an issue for judicial determination.” (quotation omitted
and alteration adopted)). But if the court finds that the challenge
to the validity or enforceability of the delegation agreement lacks
merit—or if no such challenge is made—the court must enforce the
delegation agreement and send any challenges to the validity or
enforceability of the primary arbitration agreement to the
arbitrator. See Parnell, 804 F.3d at 1146–47 (“[A]bsent a challenge
to the delegation provision itself, the federal courts must treat the
delegation provision as valid under § 2, and must enforce it under
§§ 3 and 4, leaving any challenge to the validity of the [a]greement
as a whole for the arbitrator.” (quotation omitted)).
Further, before deciding a challenge to the validity or
enforceability of a delegation agreement, we should ensure that the
challenge asserted really is about the delegation agreement.
Otherwise, we risk trampling on the parties’ agreement to arbitrate
the validity or enforceability of the other parts of the contract.
Accordingly, “[w]e may examine a challenge to a delegation
provision only if the claimant challenged the delegation provision
directly.” Jones, 866 F.3d at 1264 (quotation omitted); see also
Parnell, 804 F.3d at 1146 (“[T]he plaintiff must challenge the
delegation provision specifically.” (quotation, alteration, and
emphasis omitted)). And to “directly” or “specifically” challenge
the validity or enforceability of a delegation agreement, it is not
sufficient for a party to merely say the words, “I am challenging the
delegation agreement.” Challenging a delegation agreement is a
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20-13575 Opinion of the Court 39
matter of substance, not form. A party specifically challenges the
validity or enforceability of a delegation agreement if, and only if,
the substantive nature of the party’s challenge meaningfully goes
to the parties’ precise agreement to delegate threshold arbitrability
issues. See Rent-A-Center, 561 U.S. at 71–72 (stating that “the basis
of [a plaintiff’s] challenge” to a delegation agreement must “be
directed specifically” at the delegation agreement “before the court
will intervene”); see also id. at 74 (petitioner did not directly
challenge a delegation agreement where he “did not make any
arguments specific to the delegation provision” (emphasis added));
Jones, 866 F.3d at 1265 (plaintiff “did not directly challenge the
delegation provision” where he “d[id] not offer any details about
why the delegation provision itself, apart from the agreement as a
whole,” was invalid or unenforceable, and where “the heart of his
argumentation was directed at the agreement as a whole”); Parnell,
804 F.3d at 1146 (plaintiff did not directly challenge a delegation
agreement where “he did not articulate a challenge to the
delegation provision specifically” (emphasis added)).
And how, in practice, does a challenge to the validity or
enforceability of a delegation agreement differ from a challenge
only to the validity or enforceability of a primary arbitration
agreement? Some examples may help to sharpen the distinction.
Rent-A-Center, 561 U.S. 63, involved a challenge only to the
validity or enforceability of a primary arbitration agreement. In
Rent-A-Center, the plaintiff, Jackson, asserted discrimination
claims against his former employer. Id. at 65. Jackson had executed
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40 Opinion of the Court 20-13575
an arbitration agreement requiring arbitration of claims “arising
out of” his employment with Rent-A-Center, including “claims for
discrimination.” Id. The arbitration agreement included a
delegation clause stating that an arbitrator “shall have exclusive
authority to resolve any dispute relating to the interpretation,
applicability, enforceability or formation” of the arbitration
agreement. Id. at 66.
After Jackson filed suit, Rent-A-Center moved to compel
arbitration. Id. at 65–66. Jackson opposed arbitration, arguing that
the parties’ arbitration agreement was unconscionable, and
therefore unenforceable, under Nevada law. Id. at 66. Jackson’s
unconscionability arguments were directed at two specific
provisions of the parties’ arbitration agreement: a provision
requiring the parties to share the costs of arbitration, and a
provision limiting the discovery available to the parties in
arbitration. See id. at 74. Jackson argued that it would be
unconscionable to require him to arbitrate his discrimination
claims against Rent-A-Center under those conditions. See id.The Supreme Court held that Jackson’s unconscionability
challenge went to the enforceability of the parties’ arbitration
agreement as a whole—but not specifically to the enforceability of
the delegation clause—and that an arbitrator should therefore
decide the unconscionability issue. See id. at 72–75. The Court
noted that Jackson’s specific unconscionability argument was that
the arbitration agreement’s cost-sharing and discovery-limiting
procedures would result in an unfair arbitration of his
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20-13575 Opinion of the Court 41
discrimination claims, and that the “entire Agreement” was
therefore “invalid.” See id. at 74 (emphasis in original). However,
Jackson did not specifically assert that the threshold arbitration of
his arbitrability challenge would be unfair as a result of those
procedures. See id. (noting that Jackson had not “argue[d] that
these common procedures as applied to the delegation provision
rendered that provision unconscionable” (emphasis in original)).
Because the substance of Jackson’s unconscionability challenge was
not “specific to the delegation provision,” the Court enforced the
delegation provision as written. See id. at 72, 74.
By contrast, Parm, 835 F.3d 1331, involved a specific
challenge to the validity or enforceability of a delegation
agreement. In Parm, the plaintiff asserted claims against National
Bank of California (NBCal), a financial service provider of payday
lender Western Sky, relating to allegedly illegal payday loan
agreements between Western Sky and its borrowers. Id. at 1332–
33. Parm’s claims arose from her payday loan contract with
Western Sky, in which she agreed to arbitrate “any controversy or
claim between” Parm and Western Sky or its service providers. See
id. at 1333. The arbitration agreement in the loan contract
provided, with some inapplicable exceptions, that “any Dispute . . .
will be resolved by Arbitration, which shall be conducted by the
Cheyenne River Sioux Tribal Nation by an authorized
representative in accordance with its consumer dispute rules.” Id.It included a delegation agreement in which Parm agreed to
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42 Opinion of the Court 20-13575
arbitrate “any issue concerning the validity, enforceability, or scope
of this loan or the Arbitration agreement.” Id.After Parm filed suit, NBCal moved to compel arbitration.
Id. at 1334. Parm opposed arbitration, arguing that both her
agreement to arbitrate her claims arising from her loan contract
with Western Sky and her agreement to arbitrate threshold
questions about the arbitrability of those claims were
unenforceable because the arbitral forum provided for in the loan
contract was illusory. See id. In particular, Parm argued that the
Cheyenne River Sioux Tribal Nation does not arbitrate disputes
and has no arbitration rules or procedures, and thus that there was
no actual arbitral forum before which the parties could arbitrate
any dispute. See id.On appeal, we found that Parm had specifically challenged
the enforceability of the loan contract’s delegation agreement. See
id. at 1334–35. Parm’s challenge to the enforceability of the
delegation agreement was simple and direct: because the parties’
chosen arbitral forum did not exist, there was no one to whom the
parties could delegate their threshold arbitrability issues. See id. at
1335 (discussing Parm’s “contention . . . that the delegation clause
is unenforceable because the arbitration agreement provides no
available forum for an arbitrator to decide threshold issues of
arbitrability”). Turning to the merits of Parm’s challenge to the
enforceability of the delegation agreement, we found that the
Cheyenne River Sioux Tribal Nation was indeed an illusory arbitral
forum and that the delegation agreement therefore could not be
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20-13575 Opinion of the Court 43
enforced. 12 See id. at 1335–37. We then upheld Parm’s challenge
to the enforceability of the loan contract’s primary arbitration
agreement on similar grounds, finding that, given the illusory
arbitral forum, Parm’s agreement to arbitrate her claims could not
be enforced either. See id. at 1338.
Returning to the case at hand, to save this case from going
to arbitration, Attix must raise a specific challenge to the validity or
enforceability of the parties’ delegation agreement. See Rent-A-
Center, 561 U.S. at 72 (stating that, “unless [the plaintiff has]
challenged the delegation provision specifically, we must treat it as
valid under § 2, and must enforce it under §§ 3 and 4”). Attix has
not done so. The parties’ delegation agreement says an arbitrator
should decide questions of arbitrability, and Attix cites no law that
would prohibit an arbitrator from doing so. Attix argues that his
statutory challenge based on the Dodd-Frank Act is “specific” to
the parties’ delegation agreement. But it is not. Attix’s statutory
challenge is only about whether the parties’ primary arbitration
agreement—i.e., their agreement to arbitrate his claims—is
12
In reaching this conclusion, we noted in Parm that § 5 of the FAA typically
allows the court to “appoint a substitute in the event there is a lapse or failure
of the named [arbitral] forum” in the parties’ contract. 835 F.3d at 1337; see
also 9 U.S.C. § 5. But, because the parties’ “‘choice of forum [was] an integral
part of the agreement to arbitrate,’” we held, in keeping with our prior
precedents, that the “‘failure of the chosen forum preclude[d] arbitration’”
altogether. Parm, 835 F.3d at 1337 (quoting Inetianbor v. CashCall, Inc., 768
F.3d 1346, 1350 (11th Cir. 2014)).
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44 Opinion of the Court 20-13575
enforceable. Under the parties’ delegation agreement, that issue is
committed to an arbitrator’s review.
To understand why Attix’s Dodd-Frank Act challenge is only
about whether the parties’ primary arbitration agreement is
enforceable, not whether the parties’ delegation agreement is
enforceable, we must understand the nature of the challenge. Attix
bases his Dodd-Frank Act challenge on 15 U.S.C. § 1639c(e)(3),
which states:
No provision of any residential mortgage loan or of
any extension of credit under an open end consumer
credit plan secured by the principal dwelling of the
consumer, and no other agreement between the
consumer and the creditor relating to the residential
mortgage loan or extension of credit referred to in
paragraph (1), shall be applied or interpreted so as to
bar a consumer from bringing an action in an
appropriate district court of the United States, or any
other court of competent jurisdiction, pursuant to
section 1640 of this title or any other provision of law,
for damages or other relief in connection with any
alleged violation of this section, any other provision
of this subchapter, or any other Federal law.
15 U.S.C. § 1639c(e)(3) (emphases added).
Attix’s Dodd-Frank Act challenge has two parts. The first
part is about the types of agreements that fall within § 1639c(e)(3)’s
purview. Section 1639c(e)(3) governs several types of agreements,
including an “agreement between [a] consumer and [a] creditor
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20-13575 Opinion of the Court 45
relating to [a] residential mortgage loan.” Attix argues that the
Speedpay terms and conditions are one such mortgage-related
agreement between a consumer and a creditor. In particular, Attix
argues that, under the statute: (1) he is a “consumer”; (2)
Carrington is a “creditor”; and (3) the terms and conditions
governing his use of Speedpay’s service to pay his mortgage in May
2020 “relate to” his residential mortgage loan.
The second part of Attix’s Dodd-Frank Act challenge is
about § 1639c(e)(3)’s protections against arbitration. Section
1639c(e)(3) provides that a mortgage-related contract between a
consumer and a creditor “shall [not] be applied or interpreted so as
to bar a consumer from bringing an action in an appropriate district
court of the United States . . . for damages or other relief in
connection with any alleged violation of this section, any other
provision of this subchapter, or any other Federal law.” Attix
argues that, because his claims arise from the Speedpay terms and
conditions, and because he has asserted a claim against Carrington
under a “[f]ederal law,” i.e., the FDCPA, this provision guarantees
him the right to bring his claims against Carrington in federal court.
Therefore, Attix says, the statute renders his agreement to arbitrate
his claims unenforceable, because to enforce the arbitration
agreement would be to “interpret” and “apply” the Speedpay terms
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46 Opinion of the Court 20-13575
and conditions “so as to bar” him from pursuing his claims in
court.13
Attix’s Dodd-Frank Act challenge is, without doubt, about
the enforceability of the parties’ primary arbitration agreement—
i.e., their agreement that “any dispute arising from or relating to
Service or your Payment(s) shall be resolved by mandatory and
binding arbitration.” Indeed, in his brief, Attix describes his Dodd-
Frank Act challenge by reference to the parties’ agreement to
arbitrate his claims, stating, for example, that “the Dodd-Frank Act
prohibits arbitration of plaintiff’s claims relating to plaintiff’s
mortgage,” and that “Section 1639c(e)(3) of the Dodd-Frank Act
prohibits Carrington . . . from compelling arbitration of . . . causes
of action relating to Plaintiff’s residential mortgage loan.” These
descriptions are correct. By arguing that § 1639c(e)(3) gives him
the right to prosecute his claims against Carrington in federal court,
Attix is disputing the enforceability of the parties’ primary
arbitration agreement.
13
In response to Attix’s Dodd-Frank Act challenge, Carrington does not
dispute that § 1639c(e)(3) protects against the arbitration of claims arising from
certain agreements. Rather, Carrington argues that the Speedpay terms and
conditions fall outside of § 1639c(e)(3)’s ambit altogether. In particular,
Carrington argues that, under the statute: (1) it is not a “creditor”; and (2) the
Speedpay terms and conditions do not “relate to” Attix’s residential mortgage
loan. Thus, Carrington argues, its agreement with Attix is not an “agreement
between [a] consumer and [a] creditor relating to [a] residential mortgage
loan” to which § 1639c(e)(3)’s protections against arbitration would apply.
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20-13575 Opinion of the Court 47
Attix’s Dodd-Frank Act challenge is not, however, about the
enforceability of the parties’ delegation agreement. The parties’
express delegation clause provides that an “arbitrator shall also
decide what is subject to arbitration unless prohibited by law,” and
the AAA rules the parties incorporated into their agreement
provide that an “arbitrator shall have the power to rule on his or
her own jurisdiction.” These provisions commit threshold
arbitrability issues to an arbitrator’s review. The parties have a live
threshold dispute: whether their agreement to arbitrate Attix’s
claims falls within the scope of § 1639c(e)(3)’s protections against
arbitration. And—this is the critical part—Attix does not explain
how § 1639c(e)(3) bars an arbitrator from resolving that dispute.
Although Attix asserts that the Speedpay terms and conditions fall
within § 1639c(e)(3)’s purview, he points to no language in
§ 1639c(e)(3) that says a court, rather than an arbitrator, must
decide whether he is right. See Parnell, 804 F.3d at 1149 (plaintiff
did not specifically challenge a delegation agreement where “[a]t
no point in his complaint [did he] specifically challenge the parties’
agreement to commit to arbitration the question of the
enforceability of the arbitration agreement” (emphasis in original)).
By contract, the gateway question of arbitrability in this case is
delegated to an arbitrator, and nothing in § 1639c(e)(3) divests the
arbitrator of his or her power to decide that issue.
Further, in unpacking why § 1639c(e)(3) does not bar the
delegation of questions of arbitrability, one passage in the statute
warrants particular attention: the prohibition against certain
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48 Opinion of the Court 20-13575
mortgage-related agreements being “applied or interpreted so as to
bar a consumer from bringing an action” in federal court. 15 U.S.C.
§ 1639c(e)(3). We read this language to provide that arbitration
agreements in contracts that fall into a particular bucket—i.e., the
“mortgage-related contracts between consumers and creditors”
bucket—are unenforceable. We do not, however, read it to bar an
arbitrator from deciding whether a given contract falls into that
bucket to begin with. In other words, we do not read § 1639c(e)(3)
to prohibit the enforcement of delegation agreements in any way.
After all, how would one “appl[y]” or “interpret[]” a contract
so as to “bar” an “action” in federal court? We think the answer is
obvious: by enforcing an agreement to arbitrate claims arising from
the contract. The parties’ delegation agreement, however—unlike
their primary arbitration agreement—is not an agreement to
arbitrate their claims. It is simply an agreement to have an
arbitrator decide threshold issues of arbitrability. Whether
§ 1639c(e)(3) even applies to the parties’ contract at all is a
quintessential arbitrability question. The parties have agreed that
an arbitrator will decide that question, and nothing in § 1639c(e)(3)
requires that a court decide the question instead.
To sharpen the point even more, consider a contrasting
hypothetical. Imagine that § 1639c(e)(3) said something like the
following:
No agreement between a consumer and a creditor
relating to a residential mortgage loan shall be applied
or interpreted so as to bar a consumer from bringing
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20-13575 Opinion of the Court 49
an action in an appropriate district court of the United
States arising from that agreement and asserted under
any Federal law. Any controversy regarding whether
a particular contract constitutes an agreement falling
within the scope of this subsection shall be
determined by an appropriate district court of the
United States.
Under a provision like this, Attix would, or at least might, have a
cognizable challenge to the enforceability of a delegation
agreement committing threshold arbitrability issues—including
whether a particular contract falls within § 1639c(e)(3)’s purview—
to an arbitrator’s review. By providing that a federal court must
determine “whether a particular contract constitutes an agreement
falling within the scope” of the statute, this hypothetical provision
would appear to prohibit an arbitrator from deciding that threshold
issue. 14 But these are made-up words. They are not in the statute.
The actual statute is silent as to who may decide whether a
particular contract falls within the scope of its protections. And, of
course, the parties’ agreement is not silent as to who should decide.
Finally, Attix suggests that we have “jurisdiction” to
consider his Dodd-Frank Act challenge because, in the district
court, Attix asserted a different challenge to the validity or
enforceability of the delegation agreement: i.e., that Carrington
14
To be clear, we are not suggesting that this pretend statute should or even
could exist. We are not in the business of writing statutes, and disclaim any
expertise in that art. We offer the example solely for purposes of illustration.
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50 Opinion of the Court 20-13575
was not a party to the Speedpay terms and conditions and therefore
could not enforce the delegation agreement. The district court
rejected this “Carrington was not a party” argument, and Attix has
not raised it on appeal. Attix argues, however, that, because he
made one argument that was “specific” to the delegation
agreement below, we can consider other arguments he has made
on appeal whether or not they relate specifically to the delegation
agreement. That is not how this works. When a contract contains
a delegation agreement, “we only retain jurisdiction to review a
challenge to that particular provision.” Parnell, 804 F.3d at 1148. 15
The fact that Attix made one argument in the district court that
may have been specifically about the validity or enforceability of
the parties’ delegation agreement does not open the door for us to
consider other challenges that are not. See Parm, 835 F.3d at 1334–
35 (when an arbitration agreement “contains a delegation clause,
our review is limited” to “direct challenges to that clause”).
Because Attix’s Dodd-Frank Act challenge is only about the
enforceability of the parties’ primary arbitration agreement, under
the parties’ delegation agreement, an arbitrator must resolve it.
See Bodine v. Cook’s Pest Control Inc., 830 F.3d 1320, 1324 (11th
Cir. 2016) (“When a delegation clause is properly raised by the
15
We note, as we have said before, that our reference to “jurisdiction” in
Parnell was not a reference to “‘jurisdiction’ in its technical sense.” Bodine v.
Cook’s Pest Control Inc., 830 F.3d 1320, 1324 n.3 (11th Cir. 2016). We meant
only to “convey that whether the arbitration agreement was enforceable was
a decision committed not to the court, but to the arbitrator.” Id.USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 51 of 52
20-13575 Opinion of the Court 51
defendant and never specifically challenged by the plaintiff, the
FAA directs the court to treat the clause as valid and compel
arbitration.”). If the arbitrator decides that the Speedpay terms and
conditions are an “agreement between [a] consumer and [a]
creditor relating to [a] residential mortgage loan” under
§ 1639c(e)(3), and that § 1639c(e)(3) guarantees Attix a right to
assert his claims arising from that agreement in federal court,
Attix’s action will return to court for judicial determination of his
claims. If the arbitrator determines that the Speedpay terms and
conditions fall outside of § 1639c(e)(3)’s ambit, Attix’s action will
proceed in arbitration, under the terms of the parties’ agreement.
To be clear, we take no position whatsoever on the proper
interpretation of any provision of § 1639c(e)(3), or its applicability,
or lack thereof, to this case. We leave those determinations to an
arbitrator, because that is what the parties have agreed.
* * *
As those keeping score at home will have already realized,
here is what we do not decide in this appeal: We do not decide
whether Attix’s claims have merit. Nor do we decide whether the
parties must arbitrate Attix’s claims. Instead, we decide only who
will decide whether the parties must arbitrate. Under the parties’
agreement, the answer is, an arbitrator.
At the end of the day, the “arbitrability of arbitrability” is
simply about the freedom to decide who decides disputes. Federal
law provides, emphatically, that parties may opt out of the judicial
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52 Opinion of the Court 20-13575
system. One would be hard-pressed to find a topic about which
the Supreme Court has provided more consistent clarity in recent
years than arbitration. The Court’s precedents make clear that,
when an appeal presents a delegation agreement and a question of
arbitrability, we stop. We do not pass go. At some point in this
litigation, someone may, perhaps, collect $200. Whether anyone
will—and who will ultimately decide whether anyone does—are
not questions we answer today.
IV. Conclusion
We REVERSE the denial of Carrington’s motion to compel
arbitration and REMAND to the district court with instructions to
compel arbitration and stay the proceedings in the district court.