Maria Del Rocio Burgos Garcia v. Church of Scientology Flag Service Organization, Inc.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-13452
____________________
MARIA DEL ROCIO BURGOS GARCIA,
LUIS A. GARCIA SAZ,
Plaintiffs-Appellants-
Cross Appellees,
versus
CHURCH OF SCIENTOLOGY FLAG SERVICE
ORGANIZATION, INC.,
a Florida nonprofit corporation,
CHURCH OF SCIENTOLOGY FLAG SHIP SERVICE
ORGANIZATION, INC.,
a foreign corporation doing business in Florida,
d.b.a. Magestic Cruise Lines,
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2 Opinion of the Court 18-13452
Defendants-Appellees-
Cross Appellants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:13-cv-00220-JDW-TBM
____________________
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and LUCK, Cir-
cuit Judges.
LUCK, Circuit Judge:
The main issues in this appeal are whether the district court
correctly compelled arbitration of a dispute between two former
members of the Church of Scientology and two church entities and
whether it correctly denied a motion to vacate the resulting arbi-
tration award. Luis and Maria Garcia filed this action to recover
funds they donated to the church when they were Scientologists.
But because they agreed to submit any disputes with the church to
religious arbitration, the district court compelled arbitration before
a panel of Scientologist arbitrators. After the arbitrators awarded
the Garcias about $18,000, far less than they sought, the Garcias
moved to vacate the award based on evident partiality and arbitra-
tor misconduct. The district court denied the motion. The Garcias
appeal the orders that compelled arbitration and denied their
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18-13452 Opinion of the Court 3
motion to vacate. The church entities cross-appeal, arguing that
the district court lacked subject-matter jurisdiction over this action
and that it erred by granting leave to amend the complaint. We
affirm because the district court had jurisdiction, did not abuse its
discretion by granting leave to amend, correctly compelled arbitra-
tion, and correctly rejected the grounds for vacating the award.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Luis and Maria Garcia are former members of the Church of
Scientology. As Scientologists, the Garcias donated to projects and
causes that the church promoted, and they paid to receive religious
services. They also agreed to resolve any disputes with the church
through binding religious arbitration. The Garcias later left the
church, which led its leadership to declare them “suppressive per-
sons”—a term that refers to people who have been expelled from
Scientology. After their expulsion, the Garcias unsuccessfully
sought refunds of their donations and payments.
The Garcias filed a complaint in the district court against five
entities associated with the Church of Scientology. They alleged
claims of fraud, breach of contract, and unfair and deceptive trade
practices under state law and sought more than $400,000 in dam-
ages. In addition to two nonprofit corporations—Church of Scien-
tology Flag Service Organization, Inc., and Church of Scientology
Flag Ship Service Organization, Inc.—the Garcias named as defend-
ants two religious trusts and a nonprofit corporation that served as
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4 Opinion of the Court 18-13452
the official membership organization of Scientology. They alleged
that all five entities “acted in concert either as agents or principals
of one another, partners, joint venturers, or co-conspirators.”
Three of the Scientology entities—the two trusts and the
membership organization—moved to dismiss the complaint for
lack of diversity jurisdiction. The entities argued that the district
court lacked diversity jurisdiction because they and the Garcias
were all citizens of California.
The Garcias moved for leave to amend their complaint to
drop the three nondiverse defendants. They explained that they
had since determined that Flag Service spearheaded the activities
underlying their complaint and that the nondiverse entities were
dispensable parties. The amended complaint attributed to Flag Ser-
vice and Flag Ship much of the conduct that the original complaint
attributed to the nondiverse parties. It also alleged that Flag Ser-
vice and Flag Ship “acted in concert either as agents or principals of
one another, partners, joint venturers, or co-conspirators.”
Over the objection of Flag Service and Flag Ship, the district
court granted leave to amend and denied the pending motion to
dismiss the original complaint as moot. Flag Service and Flag Ship
then moved to dismiss the amended complaint for lack of diversity
jurisdiction, but the district court denied that motion too.
After Flag Service and Flag Ship moved to compel arbitra-
tion and stay the proceedings, the Garcias responded that the arbi-
tration agreements they signed were unenforceable. They argued
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the agreements were procedurally unconscionable because they
were contracts of adhesion and provided no procedures to govern
an arbitration. And they contended the agreements were substan-
tively unconscionable because Scientology doctrine regards sup-
pressive persons as enemies of the church who have no rights. Ac-
cording to the Garcias, this doctrine would prevent them from re-
ceiving a fair hearing before arbitrators who were “Scientologists
in good standing,” as the arbitration agreements required.
The district court held an evidentiary hearing on the motion
to compel arbitration. It found that the Garcias signed multiple
enrollment applications for religious services during their time as
Scientologists that contained broad arbitration agreements. The
agreements covered “any dispute, claim or controversy” between
the Garcias and “the Church, any other Scientology church, any
other organization which espouses, presents, propagates or prac-
tices the Scientology religion, or any person employed by any such
entity.” The Garcias agreed to resolve any disputes that could not
be settled informally “solely and exclusively through Scientology’s
Internal Ethics, Justice and binding religious arbitration proce-
dures.” The agreements provided for “binding religious arbitration
in accordance with the arbitration procedures of Church of Scien-
tology International.” They included procedures for submitting a
request for arbitration to the International Justice Chief of Scientol-
ogy and the opposing party and for the selection of three arbitrators
“to hear and resolve the matter.” Under those procedures, each
party would designate one arbitrator, and those two arbitrators
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would select a third. If the arbitrators were not designated within
a specified time, the Justice Chief had the authority to appoint ar-
bitrators. Finally, the agreements provided that the arbitration
would “be conducted in accordance with Scientology principles”
and that all arbitrators would be “Scientologists in good standing
with the Mother Church.” The district court also heard testimony
from the Justice Chief who identified various sources of Scientol-
ogy justice procedures.
Following the hearing, the district court ruled that the arbi-
tration agreements were enforceable and granted the motion to
compel arbitration. It concluded that the agreements were not
procedurally unconscionable because they included enough proce-
dures to give the Garcias some idea of the matters to be arbitrated
and the manner of effecting arbitration. And it ruled that deciding
whether Scientology teaching about suppressive persons rendered
the agreements substantively unconscionable would have required
“an analysis and interpretation of Scientology doctrine,” which the
First Amendment forbids civil courts to undertake.
As the arbitration agreements required, the Garcias sent a
request for arbitration to the International Justice Chief of Scientol-
ogy. They requested arbitration against all the Scientology entities
named in the original complaint and explained that their claims
were “as set forth in the original complaint.” They also asserted
claims against an additional Scientology entity not named in either
complaint.
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The parties were unable to agree on the selection of arbitra-
tors, so the district court invoked its authority under the Federal
Arbitration Act to appoint them. See 9 U.S.C. § 5. It ordered Flag
Service and Flag Ship to provide a list of 500 Scientologists in good
standing. It then confidentially selected five Scientologists to serve
as arbitrators or alternates.
The parties participated in a two-day arbitration—the first in
the history of the Church of Scientology. The Garcias’ attorney did
not attend the arbitration because church representatives informed
him that Scientology procedures did not allow secular lawyers to
play a substantive role in the proceedings. Luis tried to bring a
reading assistant with him to the arbitration, but a security guard
denied the assistant access because she was not on the guest list.
When Luis raised the issue, the International Justice Chief refused
to admit Luis’s reading assistant but offered to provide someone
else to assist him. Luis declined the offer.
On the first day of arbitration, the International Justice Chief
met with the Garcias and the arbitrators separately. The Justice
Chief told the Garcias that he needed to “hat” the arbitrators—a
term that the Garcias say Scientologists use to mean “train”—be-
cause it was their first arbitration. He gave the arbitrators back-
ground materials about the case, including the request for arbitra-
tion, the complaint, and church policies. He also gave the arbitra-
tors a report from the Scientology Claims Verification Board,
which expressed the Board’s view that the Garcias were not enti-
tled to a refund. The Justice Chief gave the Garcias copies of these
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8 Opinion of the Court 18-13452
documents. He also collected documentary evidence from the
Garcias so that he could review it for “entheta,” a term that the
Garcias say Scientologists use to refer to anything critical of the
church. According to an affidavit Luis submitted to the district
court, the Justice Chief redacted or excluded most of the documen-
tary evidence as “entheta” or otherwise irrelevant. The Justice
Chief gave the remaining materials to the arbitrators to review in
advance of the hearing the next day. Finally, the Justice Chief told
the Garcias that they could not bring witnesses to the hearing.
The next day, the arbitrators held a hearing with the Garcias
present. According to Luis’s affidavit, near the end of the hearing,
he complained that they had not received a fair hearing. The lead
arbitrator allegedly responded by “explod[ing] in a long platitude
that lasted almost five minutes.” He told Luis that his complaints
about fairness were misdirected because he was a big proponent of
a Scientology program the Garcias had supported and knew that
the church’s promotional statements about the program were true.
He stated that it was a “stroke of luck” that the district court “chose
[him] out of a list of 500 people” to be an arbitrator. And he told
the Garcias that he knew from prior experience that other suppres-
sive persons were working to destroy the church and had “fed [the
Garcias] all these lies” and sold them “a bill of goods.”
The arbitrators issued written findings and awarded the Gar-
cias $18,495.36 in refunds for deposits toward religious retreats
they never attended. The arbitrators assessed $16,161.35 against
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Flag Ship and $2,334.01 against Flag Service. They rejected all
other claims.
The Garcias returned to the district court and moved to va-
cate the arbitration award. They argued that the arbitrators exhib-
ited evident partiality and were guilty of misconduct. They also
moved for an evidentiary hearing on their motion to vacate. The
district court denied both motions.
II. STANDARDS OF REVIEW
A few standards govern our review. We review de novo
whether the district court had subject matter jurisdiction. United
States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir. 2016). We review
the district court’s factual findings for clear error and legal conclu-
sions de novo both for a grant of a motion to compel arbitration,
Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1350 (11th Cir. 2014),
and for a denial of a motion to vacate an arbitration award, Frazier
v. CitiFinancial Corp., LLC, 604 F.3d 1313, 1321 (11th Cir. 2010).
III. DISCUSSION
We divide our discussion into three parts. First, on the
threshold issue of jurisdiction, we conclude that the district court
had subject-matter jurisdiction over the case and that the denial of
a motion to vacate an arbitration award is a final, appealable deci-
sion. Second, we explain that the district court correctly compelled
arbitration. And third, we conclude that the district court properly
denied the motion to vacate the arbitration award.
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Jurisdiction
This appeal presents two jurisdictional issues: (1) whether
the district court had subject-matter jurisdiction; and (2) whether
the district court’s order denying the Garcias’ motion to vacate the
arbitration award was a final decision. We address each in turn.
1. The District Court Had Subject-Matter Jurisdiction
When a plaintiff amends his complaint, a federal court must
look to the amended complaint to determine whether it has subject
matter jurisdiction. See Pintando v. Miami-Dade Hous. Agency,
501 F.3d 1241, 1243 (11th Cir. 2007). This rule applies whether ju-
risdiction rests on the presence of a federal question, see id. at 1242–
43, or, as here, on diversity of citizenship, see Soberay Mach. &
Equip. Co. v. MRF Ltd., 181 F.3d 759, 763 (6th Cir. 1999); Samaha
v. Presbyterian Hosp. in the City of N.Y., 757 F.2d 529, 531 (2d Cir.
1985). We will consider the Garcias’ amended complaint to deter-
mine whether the district court had diversity jurisdiction.
As a preliminary matter, the district court properly granted
leave to amend the complaint. The Garcias explained in their mo-
tion for leave to amend that they later determined that Flag Service
spearheaded the activities underlying their complaint and that the
nondiverse entities were dispensable. The district court did not
abuse its discretion by accepting this explanation and granting
leave to amend. See Fed. R. Civ. P. 15(a)(2).
The district court had diversity jurisdiction over the
amended complaint, which named only Flag Service and Flag Ship
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as defendants, neither of which are citizens of the Garcias’ home-
state of California. And the amended complaint sought more than
$75,000 in damages. Because the amended complaint satisfied the
requirements of complete diversity and a sufficient amount in con-
troversy, the district court had jurisdiction. See 28 U.S.C. § 1332(a).
Flag Service and Flag Ship argue that the Garcias alleged the
existence of a partnership or joint venture but failed to identify the
citizenship of all members of that entity, as required to establish
diversity jurisdiction. See Underwriters at Lloyd’s, London v.
Osting-Schwinn, 613 F.3d 1079, 1086–88 (11th Cir. 2010). But no
unincorporated entity has ever been a party to this suit, so we have
no need to determine the citizenship of such an entity. Nor have
the Flag entities ever argued that some unincorporated entity is an
indispensable party whose joinder was required under rule 19 for
the suit to proceed. See Focus on the Fam. v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1280 (11th Cir. 2003).
The Flag entities also insist that they submitted “uncontro-
verted evidence” that the conduct alleged in the amended com-
plaint was committed, if at all, by the nondiverse defendants named
in the original complaint. But if that assertion is true, it means only
that the amended complaint lacked merit because Flag Service and
Flag Ship were not responsible for the conduct it alleged. It casts
no doubt on whether the Garcias are diverse from Flag Service and
Flag Ship or whether the amount in controversy exceeds $75,000.
Although the Federal Arbitration Act does not confer federal
jurisdiction, the district court had jurisdiction to compel the Flag
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entities and the Garcias to arbitrate their dispute because it had di-
versity jurisdiction over the amended complaint. See PTA-FLA,
Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016). And
diversity jurisdiction over the amended complaint “gave the dis-
trict court not only the power to compel arbitration, but also the
power to confirm [or vacate] the resulting arbitration award.” Id.Under our precedent, it does not matter whether any additional
parties who participated in the arbitration were diverse or whether
the amount sought or awarded at the arbitration exceeded the re-
quired amount in controversy. See id. at 1305–06. Instead, if a dis-
trict court had the power to compel arbitration based on diversity
jurisdiction, “it retain[ed] jurisdiction to confirm or vacate the re-
sulting arbitration award under 9 U.S.C. [sections] 9–10.” Id. at
1305 (internal quotation marks omitted). The district court’s denial
of the motion to vacate on the merits was a valid use of that power.
2. The District Court’s Order Denying the Motion to Vacate Was
a Final Decision
We issued a jurisdictional question asking whether the de-
nial of the motion to vacate the arbitration award was a final deci-
sion. A motions panel held that it was. We agree and revisit the
issue here to explain why.
The Federal Arbitration Act allows an appeal from various
district court orders regarding arbitration. See 9 U.S.C. § 16(a); see
also Martinez v. Carnival Corp., 744 F.3d 1240, 1243 (11th Cir.
2014). An order denying a motion to vacate an arbitration award
is not one of the statutorily enumerated grounds allowing for
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appeal. But the Act does allow for an appeal from “a final decision
with respect to an arbitration that is subject to this title.” 9 U.S.C.
§ 16(a)(3). We have interpreted a “final decision” under the Act to
have the “well-developed and longstanding meaning of a final de-
cision,” which is a decision that “ends the litigation on the merits
and leaves nothing more for the court to do but execute the judg-
ment.” Managed Care Advisory Grp., LLC v. CIGNA Healthcare,
Inc., 939 F.3d 1145, 1154 (11th Cir. 2019) (citation and internal quo-
tation marks omitted); see also Jackson v. Cintas Corp., 425 F.3d
1313, 1316 (11th Cir. 2005) (“A decision is final within the meaning
of [section] 16(a)(3) where the court disposes of the entire case on
the merits and leaves no part of it pending before the court.” (in-
ternal quotation marks omitted and alterations adopted)). Under
this “functional test,” we look “to the practical effect of the district
court’s order, not to its form.” Martinez, 744 F.3d at 1243–44.
We hold that an order denying a motion to vacate an arbi-
tration award is a final decision. In denying the motion to vacate
here, the district court had nothing left to decide. No motions re-
mained pending nor does the record indicate that the district court
“contemplate[d] any further action on this case.” Id. at 1244. Of-
ten after an arbitration, one party will file a motion to vacate the
award while the other party will file a motion to confirm the
award. See, e.g., Schmidt v. Finberg, 942 F.2d 1571, 1573 (11th Cir.
1991). Here, the Flag entities did not file a motion to confirm, but
that does not preclude finality. For “an arbitrator’s order is binding
on the parties unless they expressly agree otherwise, and does not
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14 Opinion of the Court 18-13452
require affirmation from a court to take effect.” Centurion Air
Cargo, Inc. v. UPS, Co., 420 F.3d 1146, 1150 (11th Cir. 2005); cf.
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus.
& Serv. Workers Int’l Union AFL–CIO–CLC v. Wise Alloys, LLC,
807 F.3d 1258, 1269 (11th Cir. 2015) (“[S]peculative post-arbitration
proceedings cannot impact the finality of orders compelling arbi-
tration.”). Even if the Flag entities could later file a motion to con-
firm the award, the Supreme Court has said that “the existence of
that remedy does not vitiate the finality of the District Court’s res-
olution of the claims in the instant proceeding.” Green Tree Fin.
Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000). Other circuits who
have considered this issue have come to the same conclusion. See
United States v. Park Place Assocs. Ltd., 563 F.3d 907, 919–20 (9th
Cir. 2009); Motion Control Corp. v. SICK, Inc., 354 F.3d 702, 704
n.4 (8th Cir. 2003); Bridas S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d
347, 353 & n.2 (5th Cir. 2003). But see Mountain Valley Prop., Inc.
v. Applied Risk Servs., Inc., 863 F.3d 90, 94 (4th Cir. 2017) (suggest-
ing in dicta that “it may be the case that the order denying the mo-
tion to vacate the arbitration award cannot be appealed because it
is not a final judgment”). We have jurisdiction to review the dis-
trict court’s denial of the motion to vacate the arbitration award.
The District Court Correctly Compelled Arbitration
The Federal Arbitration Act requires a federal court to stay
or dismiss a lawsuit and compel arbitration if “the plaintiff entered
into a written arbitration agreement that is enforceable under ordi-
nary state-law contract principles” and “the claims before the court
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18-13452 Opinion of the Court 15
fall within the scope of that agreement.” Lambert v. Austin Ind.,
544 F.3d 1192, 1195 (11th Cir. 2008) (internal quotation marks omit-
ted) (citing 9 U.S.C. §§ 2–4). The parties dispute only whether the
arbitration agreements were enforceable under Florida law. The
Garcias argue that the agreements were unconscionable. See Doc-
tor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996) (explaining
that the Act allows courts to invalidate arbitration agreements us-
ing “generally applicable contract defenses,” including unconscion-
ability).
Under Florida law, a party must establish both procedural
and substantive unconscionability to void an arbitration agree-
ment. Basulto v. Hialeah Auto., 141 So. 3d 1145, 1158 (Fla. 2014).
Procedural unconscionability “relates to the manner in which the
contract was entered,” and substantive unconscionability asks
whether the terms of the agreement are themselves too unfair to
enforce. Id. at 1157–58 (internal quotation marks omitted). The
Garcias established neither procedural nor substantive unconscion-
ability.
1. Procedural Unconscionability
Florida courts consider several factors to determine whether
a contract is procedurally unconscionable, but “[t]he central ques-
tion . . . is whether the complaining party lacked a meaningful
choice when entering into the contract.” Id. at 1157 n.3. A contract
of adhesion “is a strong indicator that the contract is procedurally
unconscionable.” VoiceStream Wireless Corp. v. U.S. Commc’ns,
Inc., 912 So. 2d 34, 40 (Fla. Dist. Ct. App. 2005) (internal quotation
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16 Opinion of the Court 18-13452
marks omitted). But “the presence of an adhesion contract alone
does not require a finding of procedural unconscionability.” Id.More is needed. See id.The Garcias argue that the arbitration agreements were pro-
cedurally unconscionable because they were contracts of adhesion
and failed to disclose sufficiently the procedures that would govern
an arbitration under the contract. To establish the second feature,
they rely on Florida decisions about the essential terms that must
appear in an arbitration agreement to form a contract. See, e.g.,
Greenbrook NH, LLC v. Est. of Sayre ex rel. Raymond, 150 So. 3d
878, 881 (Fla. Dist. Ct. App. 2014). We may assume that the pres-
ence of both features would render an arbitration agreement pro-
cedurally unconscionable and that these contract-formation deci-
sions are relevant to procedural unconscionability. Even so, the
arbitration agreements disclosed adequate procedures.
Under Florida law, the terms of an arbitration agreement
“must be definite enough so that the parties have some idea as to
what matters are to be arbitrated and provide some procedure by
which arbitration is to be effected.” Id. The essential terms of an
arbitration agreement include the “form and procedure for arbitra-
tion, the number of arbitrators, how the arbitrators [are] to be se-
lected, [and] the issues to be decided by arbitration.” Malone &
Hyde, Inc. v. RTC Transp., Inc., 515 So. 2d 365, 366 (Fla. Dist. Ct.
App. 1987).
Applying this principle, Florida courts have invalidated arbi-
tration agreements for failing to include essential terms when the
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agreements referenced arbitration but provided no procedures to
effect arbitration. See id.; Spicer v. Tenet Fla. Physician Servs.,
LLC, 149 So. 3d 163, 166 (Fla. Dist. Ct. App. 2014); Wood-Hopkins
Contracting Co. v. C.H. Barco Contracting Co., 301 So. 2d 479, 480
(Fla. Dist. Ct. App. 1974). When an agreement says that disputes
are subject to arbitration and provides procedures, such as a pro-
cess for the selection of arbitrators and a timeframe for decisions,
Florida courts enforce the arbitration provision. See, e.g., Intra-
coastal Ventures Corp. v. Safeco Ins. Co. of Am., 540 So. 2d 162,
164 (Fla. Dist. Ct. App. 1989), abrogated on other grounds as rec-
ognized in Nationwide Mut. Fire Ins. Co. v. Schweitzer, 872 So. 2d
278, 279 (Fla. Dist. Ct. App. 2004).
In Intracoastal Ventures, the agreement created a process
for appraisals of the insured’s loss. Id. at 163. It provided that if
either party made a written demand for an appraisal, each side
must nominate an appraiser within twenty days. Id. The two party
appraisers would then select a neutral umpire, but if they could not
agree on one within fifteen days, either party could petition a court
to appoint one. Id. The contract required the appraisers to set the
loss in a “reasonable” amount of time with any deadlock broken by
the third appraiser. Id. The court held that the “agreement thus
set[] forth in detail the procedure and time limits for resolution of
the dispute,” leaving no “uncertainties” as to the essential terms of
the arbitration agreement. Id. at 164.
The arbitration agreements the Garcias signed were suffi-
ciently definite. The agreements covered “any dispute, claim or
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18 Opinion of the Court 18-13452
controversy” between the Garcias and any Scientology-affiliated
entity. They required the Garcias to resolve any dispute that could
not be settled informally “exclusively through Scientology’s Inter-
nal Ethics, Justice and binding religious arbitration procedures.”
And they provided procedures for arbitration under which the Gar-
cias would submit a request for arbitration naming an arbitrator
“to hear and resolve the matter” to the International Justice Chief
and the opposing party. Within fifteen days of receiving the re-
quest, the opposing party was required to name an arbitrator, and
within fifteen days after that the two arbitrators were required to
name a third. If either the opposing party or the arbitrators them-
selves failed to act within the specified timeframe, the Justice Chief
would appoint the arbitrator. Finally, the agreements provided
that the arbitration would be “conducted in accordance with Sci-
entology principles” by arbitrators who were “Scientologists in
good standing with the Mother Church.” This tracks the agree-
ment upheld in Intracoastal Ventures—it “sets forth in detail the
procedure and time limits for resolution of the dispute” and pro-
vides the terms required by Florida law. See 540 So. 2d at 164.
These provisions were sufficient to give the Garcias “some idea” of
the matters to be arbitrated and to “provide some procedure” to
effect arbitration. Greenbrook, 150 So. 3d at 881.
The dissenting opinion relies on the district court’s fact find-
ings and the Florida court decision in Spicer to conclude that the
arbitration agreements were procedurally unconscionable. But, as
to the district court’s fact findings, it found that the Garcias had
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18-13452 Opinion of the Court 19
“some idea” about the arbitration procedures. The district court
based its finding on Luis’s testimony that he was a “committed”
Scientologist and that he had “successfully completed the ‘Ethics
Specialist Course,’ during which he studied . . . the Committee on
Evidence and its procedures, as well as the Scientology Justice Sys-
tem.”
And, as to the Spicer decision, we find it distinguishable be-
cause the arbitration agreement “d[id] not set forth any procedures
for arbitration.” 149 So. 3d at 166 (emphasis omitted). Here, on
the other hand, the arbitration agreements did provide some pro-
cedure for the arbitration. The Garcias’ agreements provided that
the arbitration would be “[i]n accordance with the discipline, faith,
internal organization, and ecclesiastical rule, custom, and law of
the Scientology religion.” And the agreements provided that the
arbitration would be “conducted in accordance with Scientology
principles, and consistent with the ecclesiastical nature of the pro-
cedures and the dispute, claim or controversy to which those pro-
cedures relate.”
2. Substantive Unconscionability
A contract is substantively unconscionable if its terms “un-
reasonably favor[]” one party and “are so unfair” that a court
should not enforce them. Basulto, 141 So. 3d at 1158 n.4 (internal
quotation marks omitted). The Garcias assert two grounds of sub-
stantive unconscionability: (1) the parties were not mutually obli-
gated to arbitrate; and (2) the requirement that the arbitrators be
Scientologists in good standing ensured that the Garcias, as
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20 Opinion of the Court 18-13452
suppressive persons, could not receive a fair and neutral adjudica-
tion of their claims.
The Flag entities argue that the Garcias failed to raise the
mutuality point in the district court and have therefore waived our
consideration of it. The Garcias counter that they raised the mu-
tuality issue before the district court in: (1) their opposition to the
motion to compel arbitration; (2) the district court’s colloquy with
defense counsel; (3) their brief before the hearing on the motion to
compel; and (4) the testimony of the International Justice Chief.
We have long held that “if a party hopes to preserve a claim,
argument, theory, or defense on appeal, she must first clearly pre-
sent it to the district court . . . in such a way as to afford the district
court an opportunity to recognize and rule on it.” Ruckh v. Salus
Rehab., LLC, 963 F.3d 1089, 1111 (11th Cir. 2020) (internal quota-
tion marks omitted). So, “[a] mere recitation of the underlying
facts . . . is insufficient to preserve an argument; the argument itself
must have been made below.” Ledford v. Peeples, 657 F.3d 1222,
1258 (11th Cir. 2011). Likewise, a “single, passing reference” to an
issue does not preserve it for appellate review. Gennusa v. Canova,
748 F.3d 1103, 1116 (11th Cir. 2014).
The Garcias have not preserved the mutuality issue. In their
opposition to the motion to compel, the Garcias mentioned mutu-
ality only in a quote from a federal district court case that listed
several of the grounds for substantive unconscionability. But “[a]n
insignificant recitation of black letter law is not tantamount to rais-
ing an issue for adjudication.” Bryant v. Jones, 575 F.3d 1281, 1308
USCA11 Case: 18-13452 Date Filed: 11/02/2021 Page: 21 of 51
18-13452 Opinion of the Court 21
(11th Cir. 2009). In that same brief, they contended that Scientol-
ogy allowed civil court actions against suppressive persons, but
with no reference to the mutuality legal doctrine, that is nothing
more than a “mere recitation of the underlying facts.” See Ledford,
657 F.3d at 1258.
The district court also discussed the lack of mutuality with
defense counsel, who perhaps conceded that the arbitration provi-
sion here lacked mutuality, but at no point in that hearing did the
Garcias themselves raise the lack of mutuality. After the colloquy
with defense counsel, the district court inquired about the Garcias’
opposition, but counsel responded that they would rely on their
filed opposition, which did not discuss mutuality. That colloquy
does not meet the standard either because “if a party hopes to pre-
serve” an issue “she must first clearly present it to the district
court.” See Ruckh, 963 F.3d at 1111 (emphasis added) (internal
quotation marks omitted). In their brief before the hearing, the
Garcias again made no reference to mutuality but, rather, cited the
testimony of the International Justice Chief that the church is not
required to arbitrate a claim it brings—another “mere recitation of
the underlying facts.” See Ledford, 657 F.3d at 1258. And the tes-
timony of the Justice Chief does nothing to show that the Garcias
presented this issue to the district court. The Garcias gave the dis-
trict court no opportunity “to recognize and rule on” the mutuality
issue and therefore have forfeited that issue as a basis for substan-
tive unconscionability. See Ruckh, 963 F.3d at 1111 (internal quo-
tation marks omitted).
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22 Opinion of the Court 18-13452
As to the second ground, the Garcias argue that Scientology
doctrine made it impossible for suppressive persons to receive a fair
arbitration before Scientologists in good standing. They offered
evidence that the Church of Scientology regarded suppressive per-
sons as insane individuals who have no rights as Scientologists and
are treated as enemies of the church. Based on this evidence, they
urged the district court not to enforce the arbitration agreements
because Scientology doctrine would compel any Scientologist in
good standing to be hostile against them, which would make it im-
possible for them to receive a fair and neutral arbitration.
In contrast to this view of Scientology doctrine, the Interna-
tional Justice Chief testified that Scientologist arbitrators must “fol-
low the procedures of the Scientology justice codes” and “treat eve-
ryone impartially regardless of who they are.” He stressed that spe-
cific Scientology tenets “apply to justice situations” and that Scien-
tologist arbitrators would be “obliged to follow those policies.”
When asked whether church doctrine would allow Scientologist
arbitrators to “listen to a suppressed person and find for them, be-
lieve them,” he explained that church justice policies required arbi-
trators to determine “the truth of the matter” regardless of “per-
sonality or opinion.” If a suppressive person appeared at a Scien-
tology arbitration, he explained, Scientologists in good standing
would have to be “impartial in that matter.”
The Supreme Court has made clear that the First Amend-
ment forbids civil courts to decide legal disputes involving
churches by “resolving underlying controversies over religious
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18-13452 Opinion of the Court 23
doctrine.” 1 Presbyterian Church in U.S. v. Mary Elizabeth Blue
Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969); accord
Md. & Va. Eldership of Churches of God v. Church of God at
Sharpsburg, Inc., 396 U.S. 367, 368 (1970); cf. Thomas v. Review
Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981). But no First
Amendment concerns arise when a civil court relies on “neutral
principles of law” to decide a church dispute. Jones v. Wolf, 443
U.S. 595, 602 (1979). Courts are free to resolve legal disputes in-
volving churches and religion so long as their resolution “involves
no consideration of doctrinal matters.” Id. (internal quotation
marks omitted).
Based on these well-established precedents, the district court
correctly ruled that the First Amendment prevented it from enter-
taining the argument that Scientology doctrine rendered the arbi-
tration agreements substantively unconscionable. Although the
Garcias presented evidence to support their interpretation of Sci-
entology doctrine, the International Justice Chief offered a conflict-
ing interpretation. The First Amendment barred the district court
from resolving this underlying controversy about church doctrine.
See Presbyterian Church, 393 U.S. at 449. To do so would have
required it to decide whether the Garcias or the Justice Chief “more
correctly perceived the commands of [the Scientology religion].”
Thomas, 450 U.S. at 716.
1The parties assume that the First Amendment’s religion clauses apply to the
Church of Scientology. We do the same.
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24 Opinion of the Court 18-13452
***
To complete the unconscionability analysis under Florida
law, a court is required to balance both procedural and substantive
unconscionability. See Basulto, 141 So. 3d at 1159. Florida courts
employ a sliding-scale approach, which means that “the more sub-
stantively oppressive the contract term, the less evidence of proce-
dural unconscionability is required to come to the conclusion that
the term is unenforceable, and vice versa.” Id. (internal quotation
marks omitted). Here, the Garcias have not presented evidence,
other than the adhesive nature of the contract, to establish proce-
dural unconscionability. But adhesiveness alone is insufficient to
prove “any degree of procedural unconscionability.” Kendall
Imps., LLC v. Diaz, 215 So. 3d 95, 110 (Fla. Dist. Ct. App. 2017); see
also Hobby Lobby Stores, Inc. v. Cole, 287 So. 3d 1272, 1276 (Fla.
Dist. Ct. App. 2020) (concluding that “the trial court erred in find-
ing the Agreement procedurally unconscionable” despite the adhe-
sive nature of the arbitration agreement).
Without any other evidence of substantive unconscionabil-
ity and no degree of procedural unconscionability, the Garcias have
not met their burden to prove the arbitration agreements uncon-
scionable. See Basulto, 141 So. 3d at 1159 (“[P]rocedural and sub-
stantive unconscionability must be established to avoid enforce-
ment of the terms within an arbitration agreement.”); Palm Beach
Motor Cars Ltd. v. Jeffries, 885 So. 2d 990, 992–93 (Fla. Dist. Ct.
App. 2004) (requiring evidence of procedural unconscionability to
invalidate an arbitration provision lacking mutuality).
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18-13452 Opinion of the Court 25
The District Court Correctly Denied the Motion to Vacate
The Federal Arbitration Act allows federal courts to vacate
an arbitration award in limited circumstances. See 9 U.S.C. § 10(a).
The party requesting vacatur bears the burden to prove one of the
statutory grounds. Riccard v. Prudential Ins. Co., 307 F.3d 1277,
1289 (11th Cir. 2002). That party must “set forth sufficient grounds
to vacate the arbitration award in his moving papers.” O.R. Sec.,
Inc. v. Prof’l Planning Assocs., Inc., 857 F.2d 742, 748 (11th Cir.
1988).
Judicial review of an arbitration award “is among the nar-
rowest known to the law.” AIG Baker Sterling Heights, LLC v.
Am. Multi-Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007) (inter-
nal quotation marks omitted). The Act “presumes that arbitration
awards will be confirmed.” Davis v. Prudential Sec., Inc., 59 F.3d
1186, 1190 (11th Cir. 1995). For that reason, “federal courts should
defer to the arbitrator’s resolution of the dispute whenever possi-
ble.” Lifecare Int’l, Inc. v. CD Med., Inc., 68 F.3d 429, 433 (11th
Cir. 1995) (internal quotation marks omitted).
Before addressing the statutory grounds for vacatur, we ad-
dress two threshold arguments that the First Amendment bars or
severely restricts our review of the arbitration award. Flag Service
and Flag Ship rely on Supreme Court precedents that affirm the
right of churches to resolve matters of “ecclesiastical cognizance”
in religious tribunals without interference by civil courts. See Ser-
bian E. Orthodox Diocese for the U.S. of Am. & Canada v. Milivo-
jevich, 426 U.S. 696, 698 (1976); Kedroff v. St. Nicholas Cathedral
USCA11 Case: 18-13452 Date Filed: 11/02/2021 Page: 26 of 51
26 Opinion of the Court 18-13452
of Russian Orthodox Church in N. Am., 344 U.S. 94, 115 (1952);
Watson v. Jones, 80 U.S. 679, 729 (1871). They also invoke the
principle that the First Amendment bars civil courts from deciding
whether religious law has been violated. Neither principle has any
application to our review of this arbitration award.
The Flag entities’ reliance on Serbian Eastern Orthodox Di-
ocese, Kedroff, and Watson is misplaced. Those decisions make
clear that civil courts may not disturb the decisions of ecclesiastical
tribunals on matters of church discipline and governance, minister
selection, and other matters of faith and doctrine. See Serbian E.
Orthodox Diocese, 426 U.S. at 697–98 (reversing a state-court deci-
sion that reinstated a defrocked bishop and invalidated a diocesan
reorganization by the Serbian Orthodox Church); Kedroff, 344 U.S.
at 106–10 (reversing a state-court decision that transferred control
over a Russian Orthodox cathedral in New York City from the Su-
preme Church Authority in Moscow to the authorities of the Rus-
sian Church in America); Watson, 80 U.S. at 727–29 (accepting as
binding the resolution of a church-property dispute by the General
Assembly of the Presbyterian Church). But the Garcias do not ask
us to disturb an ecclesiastical tribunal’s resolution of a dispute that
is “ecclesiastical in its character,” such as a dispute about “theolog-
ical controversy, church discipline, ecclesiastical government, or
the conformity of the members of the church to the standard of
morals required of them.” Serbian E. Orthodox Diocese, 426 U.S.
at 713–14 (internal quotation marks omitted). They instead ask us
to review a monetary award issued by an arbitration panel. Our
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18-13452 Opinion of the Court 27
review of that award poses no risk of intruding upon the authority
of the Church of Scientology in matters of “ecclesiastical cogni-
zance.” Id. at 698.
Nor does the principle that civil courts may not resolve ques-
tions of religious doctrine help the Flag entities. A civil court may
decide whether religious arbitrators exhibited “evident partiality”
or were “guilty of misconduct,” 9 U.S.C. § 10(a)(2)–(3), using neu-
tral principles of law. See Wolf, 443 U.S. at 602. Deciding these
questions requires us to apply our precedents, without any need to
resolve disputes over Scientology doctrine. Unlike the parties’ dis-
pute over the effect of the Garcias’ status as “suppressive persons”
on the arbitration agreements’ enforceability, their dispute over
whether the arbitrators exhibited “evident partiality” or were
“guilty of misconduct” does not require us to pick sides in a doctri-
nal dispute. At least in this appeal, we can decide whether the ar-
bitrators were evidently partial or engaged in misconduct without
deciding whether any religious law was violated.
To be sure, we must take care not to treat religious arbitra-
tors less favorably than their secular peers when reviewing an arbi-
tration award. Cf. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct.
2246, 2254–55 (2020); Trinity Lutheran Church of Columbia, Inc.
v. Comer, 137 S. Ct. 2012, 2019 (2017). But religious arbitrations
are not subject to a special exemption from the neutral and gener-
ally applicable legal standards that apply to any arbitration under
the Federal Arbitration Act. Cf. Emp. Div., Dep’t of Hum. Res. of
Or. v. Smith, 494 U.S. 872, 878–79 (1990); Our Lady of Guadalupe
USCA11 Case: 18-13452 Date Filed: 11/02/2021 Page: 28 of 51
28 Opinion of the Court 18-13452
Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020) (“[The First
Amendment] does not mean that religious institutions enjoy a gen-
eral immunity from secular laws . . . .”). Under these neutral and
generally applicable standards, we treat religious and secular arbi-
trators equally.
The Garcias moved to vacate the arbitration award on the
grounds that the arbitrators exhibited “evident partiality” and were
“guilty of misconduct.” 9 U.S.C. § 10(a)(2)–(3). We conclude that
the district court did not err in denying their motion.
1. Evident Partiality
A federal court may vacate an arbitration award “where
there was evident partiality . . . in the arbitrators.” 9 U.S.C.
§ 10(a)(2). Our caselaw interpreting this provision largely concerns
challenges to an award based on an arbitrator’s failure to disclose
an actual or potential conflict of interest. See, e.g., Univ. Com-
mons-Urbana, Ltd. v. Universal Constructors Inc., 304 F.3d 1331,
1339 (11th Cir. 2002). In adjudicating these challenges, we have
often stated that “an arbitration award may be vacated due to the
‘evident partiality’ of an arbitrator only when either (1) an actual
conflict exists, or (2) the arbitrator knows of, but fails to disclose,
information which would lead a reasonable person to believe that
a potential conflict exists.” See, e.g., id. (emphasis added) (internal
quotation marks omitted). But this language is imprecise. The
phrase “evident partiality” is not limited to undisclosed conflicts of
interest, and we have considered arguments based on other forms
of partiality without applying this two-part test. See, e.g., Riccard,
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18-13452 Opinion of the Court 29
307 F.3d at 1289; Scott v. Prudential Sec., Inc., 141 F.3d 1007, 1015
(11th Cir. 1998), abrogated on other grounds by Hall Street Assocs.,
L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008).
The Garcias do not base their claim of evident partiality on
a conflict of interest, but rather on comments made by one of the
arbitrators during the arbitration and the purported tension inher-
ent in requiring Scientologists in good standing to arbitrate a dis-
pute between the church and former members of that church—
“suppressive persons.” In response to similar challenges, we have
said that “[a]n arbitrator appointed by a party is a partisan only one
step removed from the controversy and need not be impartial.”
Lozano v. Md. Cas. Co., 850 F.2d 1470, 1472 (11th Cir. 1988),
quoted in Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d
753, 759 (11th Cir. 1993), abrogated on other grounds by Arthur
Anderson LLP v. Carlisle, 556 U.S. 624 (2009). In Sunkist Soft
Drinks, the party-appointed arbitrator, after his appointment but
before the arbitration, “assisted [the party] in preparing its case by
attending and participating in meetings with [the party’s] wit-
nesses”; “suggested lines or areas of testimony”; “helped select one
of [the party’s] consultants”; and “advised an expert witness on
how to improve a chart related to the expert’s testimony.” 10 F.3d
at 759. But we noted that none of the witnesses “gave testimony
in any sense of the word” to the arbitrator; that no evidence indi-
cated the arbitrator shared what he learned with the other arbitra-
tors; and that nothing showed the arbitrators “based their deliber-
ations and award on anything other than the evidence of record.”
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30 Opinion of the Court 18-13452
Id. We described the arbitrator’s conduct as “not only unobjection-
able, but commonplace.” Id. And we concluded that “a party-ap-
pointed arbitrator is permitted, and should be expected, to be pre-
disposed toward the nominating party’s case.” Id. at 760.
Other circuits have extended this reasoning to preclude chal-
lenges to evident partiality when partiality inherently exists in the
arbitration procedure selected by the parties. See NFL Mgmt.
Council v. NFL Players Ass’n, 820 F.3d 527, 548 (2d Cir. 2016); Wil-
liams v. NFL, 582 F.3d 863, 885 (8th Cir. 2009). “[T]he parties to
an arbitration choose their method of dispute resolution, and can
ask no more impartiality than inheres in the method they have cho-
sen.” Williams, 582 F.3d at 885 (internal quotation marks omitted).
That rule stems from the recognition that “arbitration is a matter
of contract,” NFL Mgmt. Council, 820 F.3d at 548, so the “regime”
for selecting arbitrators is “bargained for and agreed upon by the
parties, which we can only presume they determined was mutually
satisfactory,” id. at 532 (rejecting Tom Brady’s evident partiality
challenge to an arbitration award for which the NFL’s commis-
sioner acted as the sole arbitrator after imposing the very discipline
Brady challenged).
The Garcias agreed to a method of arbitration with inherent
partiality and cannot now seek to vacate that award based on that
very partiality. Luis submitted an affidavit identifying various com-
ments made by the lead arbitrator reflecting bias in favor of the
church, its policies, and its programs. But the arbitration agree-
ments provided that any disputes between the Garcias and the
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18-13452 Opinion of the Court 31
church would be resolved “solely and exclusively through Scientol-
ogy’s Internal Ethics, Justice and binding religious arbitration pro-
cedures.” The Garcias also agreed that their “specific intention”
was that “all . . . arbitrators be Scientologists in good standing with
the Mother Church.” A Scientologist in good standing would nat-
urally be expected to have bias (or even a great deal of bias) in favor
of the church, yet the Garcias accepted this method of arbitration
to resolve any disputes between them and the church. We “can
only presume” that arrangement was “mutually satisfactory,” id.,
and see no problem here with the “predispos[ition]” of the arbitra-
tors, Sunkist Soft Drinks, 10 F.3d at 760.
The Garcias also argue that the arbitrators were evidently
partial because of an ex parte meeting between them and the Inter-
national Justice Chief, but we disagree. That the arbitrators re-
ceived background materials and documentary evidence outside
the presence of the Garcias, some of which was unfavorable to
them, does not prove that the arbitrators harbored bias or preju-
dice. This meeting between the convening authority and these
first-time arbitrators was unremarkable in the context of an infor-
mal religious arbitration proceeding. See 14 Penn Plaza LLC v. Py-
ett, 556 U.S. 247, 269 (2009) (explaining that parties to an arbitration
agreement “trade the procedures and opportunity for review of the
courtroom for the simplicity, informality, and expedition of arbi-
tration” (alteration adopted) (internal quotation marks omitted));
Advanced Bodycare Sols., LLC v. Thione Int’l, Inc., 524 F.3d 1235,
1239 (11th Cir. 2008) (explaining that an arbitrator must consider
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32 Opinion of the Court 18-13452
evidence and argument from each party “however formally or in-
formally”). The allegations of partiality based on this meeting are
not “direct, definite and capable of demonstration” but are instead
“remote, uncertain and speculative.” Scott, 141 F.3d at 1015 (inter-
nal quotation marks omitted).
2. Misconduct
A federal court may also vacate an arbitration award “where
the arbitrators were guilty of misconduct . . . in refusing to hear ev-
idence pertinent and material to the controversy; or of any other
misbehavior by which the rights of any party have been preju-
diced.” 9 U.S.C. § 10(a)(3). The Garcias argue that the arbitrators
were guilty of misconduct for three main reasons: (1) they refused
to hear any evidence critical of Scientology; (2) they allowed the
International Justice Chief to present evidence outside the presence
of the Garcias; and (3) Luis’s lawyer and reading assistant were not
allowed to attend the arbitration. None of these alleged acts of
misconduct warrant vacatur.
The Garcias have not established misconduct based on the
refusal to hear evidence. Vacatur for failure to hear evidence is
warranted only if the evidence is “pertinent and material” and its
exclusion “prejudiced” the rights of a party. 9 U.S.C. § 10(a)(3); see
Rosensweig v. Morgan Stanley & Co., 494 F.3d 1328, 1333 (11th
Cir. 2007). Although the Garcias assert that the International Jus-
tice Chief barred them from bringing witnesses to the arbitration
and redacted or excluded nearly 900 pages of documentary
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18-13452 Opinion of the Court 33
evidence, they have not identified any witnesses they wished to call
or submitted the 900 pages of evidence. Nor have they explained
what those witnesses might have said or how the documentary ev-
idence was relevant to their claims. So they have failed to establish
that this evidence was pertinent and material to their claims or that
its exclusion prejudiced their rights.
Nor have the Garcias established misconduct based on
ex parte submissions of documentary evidence by the International
Justice Chief. The Justice Chief submitted documentary evidence
from both the church and the Garcias in advance of the arbitration
hearing to allow the arbitrators to prepare. And he provided the
Garcias with copies of the documentary evidence he submitted to
the arbitrators. It was not misconduct for the arbitrators to receive
documentary evidence outside the presence of the parties in ad-
vance of the arbitration hearing.
We also reject the argument that vacatur is warranted on
the grounds that Luis’s reading assistant and attorney were barred
from attending the arbitration. Although a security guard denied
the reading assistant entry, the International Justice Chief offered
to provide Luis a different person to read for him. And in any
event, Luis has not explained how the lack of a reading assistant
prejudiced him. To the contrary, his affidavit states that he read
twenty-eight pages of church policies in about twenty minutes on
the first day of the arbitration. And as the district court found,
“[t]here is no evidence that [the Garcias’] attorney attempted to at-
tend [the arbitration] but was turned away.” Instead, after learning
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34 Opinion of the Court 18-13452
that attorneys could play no substantive role in Scientology arbi-
tration proceedings, their attorney chose not to attend the arbitra-
tion.
AFFIRMED.
USCA11 Case: 18-13452 Date Filed: 11/02/2021 Page: 35 of 51
18-13452 ROSENBAUM, J., dissenting 1
ROSENBAUM, Circuit Judge, dissenting:
You can’t make up the rules as you go along. It’s a basic
concept of fairness, and it’s one that applies to arbitration as well.
No wonder. If a party to the arbitration can create the rules gov-
erning the arbitration as the arbitration progresses, it enjoys an in-
surmountable advantage that effectively guarantees its victory.
That’s not an arbitration; it’s just plain arbitrary. And a federal
court should not be a rubber stamp for the kind of inherently un-
fair, anything-the-arbitration-contract-drafting-party-wants-goes
“arbitration” that necessarily occurs when the agreement-drafting
party can subject the other party to whatever rules it desires—even
changing the rules—as the arbitration unfolds.
I would vacate the district court’s order compelling arbitra-
tion here because the arbitration agreement is not a valid agree-
ment to arbitrate. Rather, in requiring the Garcias to agree to be
governed at arbitration by rules that did not exist and would be
devised by the Church and evolve while the arbitration proceeded,
the arbitration agreement was as one-sided and unconscionable as
an arbitration agreement can be. Because that kind of spectacle is
not an arbitration and we should not stamp it with the imprimatur
of the federal courts, I respectfully dissent.
I divide my discussion into two parts. In Section I, I review
the district court’s factual findings about the arbitration “process”
involved here. And Section II applies the caselaw to the facts and
shows why the arbitration agreement here was not valid.
USCA11 Case: 18-13452 Date Filed: 11/02/2021 Page: 36 of 51
2 ROSENBAUM, J., dissenting 18-13452
I.
I reprint the entirety of the relevant language of the arbitra-
tion agreement, since that is what governed the “arbitration” here.
It provided,
d. In accordance with the discipline, faith, internal or-
ganization, and ecclesiastical rule, custom, and law of
the Scientology religion, and in accordance with the
constitutional prohibitions which forbit governmen-
tal interference with religious services or dispute res-
olution procedures, should any dispute, claim or con-
troversy arise between me and the Church, any other
Scientology church, any other organization which es-
pouses, presents, propagates or practices the Scientol-
ogy religion, or any person employed by any such en-
tity, which cannot be resolved informally by direct
communication, I will pursue resolution of that dis-
pute, claim or controversy solely and exclusively
through Scientology’s Internal Ethics, Justice and
binding religious arbitration procedures, which in-
clude application to senior ecclesiastical bodies, in-
cluding, as necessary, final submission of the dispute
to the International Justice Chief of the Mother
Church of the Scientology religion, Church of Scien-
tology International (“IJC”) or his or her designee.
e. Any dispute, claim or controversy which still re-
mains unresolved after review by the IJC shall be
USCA11 Case: 18-13452 Date Filed: 11/02/2021 Page: 37 of 51
18-13452 ROSENBAUM, J., dissenting 3
submitted to binding religious arbitration in accord-
ance with the arbitration procedures of Church of Sci-
entology International, which provide that:
i. I will submit a request for arbitration to the IJC and
to the person or entity with whom I have the dispute,
claim or controversy;
ii. In my request for arbitration, I will designate one
arbitrator to hear and resolve the matter;
iii. within fifteen (15) days after receiving my request
for arbitration, the person or entity with whom I have
the dispute, claim or controversy will designate an ar-
bitrator to hear and resolve the matter. If the person
or entity with whom I have the dispute, claim or con-
troversy does not designate an arbitrator within that
fifteen (15) day period, then the IJC will designate the
second arbitrator;
iv. the two arbitrators so designated will select a third
arbitrator within fifteen (15) days after the designa-
tion of the second arbitrator. If the arbitrators are un-
able to designate a third arbitrator within the fifteen
(15) day period, then the IJC will choose the third ar-
bitrator;
v. consistent with my intention that the arbitration
be conducted in accordance with Scientology princi-
ples, and consistent with the ecclesiastical nature of
USCA11 Case: 18-13452 Date Filed: 11/02/2021 Page: 38 of 51
4 ROSENBAUM, J., dissenting 18-13452
the procedures and the dispute, claim or controversy
to which those procedures relate, it is my specific in-
tention that all such arbitrators be Scientologists in
good standing with the Mother Church.
(emphasis added).
This language, of course, conveys that, at the time the arbi-
tration agreements were entered, the Church of Scientology had
“binding religious arbitration procedures.”
But following an evidentiary hearing, the district concluded
that, in fact, it did not. In response to the Church’s 1 assertion that
its Committee on Evidence provides the rules and procedures gov-
erning arbitration, the district court determined that the Church
“failed to present any convincing evidence supporting [this] con-
strained contention.” Among other reasons why the court found
that to be the case, the court noted that (1) “the arbitration agree-
ments make no reference to the Committee on Evidence”; (2) “the
word ‘arbitration’ cannot be found in the Committee on Evidence
or in L[.] Ron Hubbard’s book”; and (3) “even a superficial com-
parison of the arbitration agreements with the provisions in the
Committee on Evidence supports Plaintiffs’ contention that the
Committee on Evidence could not, absent an ad hoc determina-
tion, provide the rules and procedures of arbitration.” As the court
explained, “[E]ven [the IJC] acknowledged[] numerous
1 For easeof reference, I refer to the Defendants collectively as the “Church of
Scientology” or the “Church.”
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18-13452 ROSENBAUM, J., dissenting 5
irreconcilable inconsistencies exist between [the arbitration agree-
ments and the provisions in the Committee on Evidence].”
And with respect to the IJC’s testimony allegedly “iden-
tif[ying] various sources of Scientology justice procedures,” Maj.
Op. at 6, the district court rejected it. The court “g[ave] no weight”
to correspondence the IJC created, noting that the IJC “could recall
little about circumstances giving rise to [a letter to the IJC] and [the
IJC’s] response, even though his response[] was written only a few
months before the evidentiary hearing.” Indeed, the court con-
cluded that “the timing of the [letter to the IJC] raise[d] a compel-
ling inference that it was conveniently written only after [the
Church] had represented to the Court that [the IJC] had ‘ruled’ that
the Committee on Evidence applied to Scientology arbitration and
the Court directed [the Church] to submit proof of that represen-
tation.” As the district court observed, “[a] mere six days passed
between that Order . . . and [the letter to the IJC].” And as for the
IJC’s testimony that he “made a prior determination that the Com-
mittee on Evidence applies to Scientology arbitration . . . five to ten
years before,” the district court found the IJC’s “testimony was not
credible.”
Even the Church’s counsel implicitly conceded that the
Church lacked existing rules of procedure. In fact, he advised the
Garcias’ attorney in writing before the arbitration that “[t]he
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6 ROSENBAUM, J., dissenting 18-13452
conduct of the religious arbitration will be decided by the IJC at the
appropriate time during the arbitration.”2 (emphasis added).
Not only did the Church not have existing arbitration rules
and procedures as late as the time of the Garcias’ “arbitration” here,
but until the Garcias’ “arbitration,” the district court found, “there
ha[d] never even been an arbitration in the Church.” The district
court cited this fact as further support for the Garcias’ position that
“no rules and procedures for conducting arbitration exist[ed]” at
the time of the Garcias’ “arbitration.”
In short, the district court found, as a matter of fact, that the
Church had no rules and procedures for conducting the actual “ar-
bitration” not only at the time the Garcias signed the agreements
but as late as when their “arbitration” occurred. Instead—and as
2 At the “arbitration,” the IJC did, in fact, make up the rules—and change
them—as the proceedings went on. For example, before arbitration, the IJC
testified in his deposition that the attorney for the Garcias could be present at
the arbitration, but could not “represent” them. Once it was time to actually
arbitrate, though, the Garcias were told that the procedures “[did] not con-
template participation by an attorney” and that civil lawyers “[had] no role to
play at the arbitration.” The IJC also testified that the Garcias would be per-
mitted to testify at the arbitration, but the arbitrators consistently cut Mr. Gar-
cia off when he tried to present his case and told him he could not submit any
“entheta,” a Scientology term for material that is critical of Scientology. Sim-
ilarly, pre-arbitration, the IJC testified that the Garcias would be able to “pre-
sent [their] side of the story” and “originate whatever [they] wanted to.” But
then at the arbitration, the IJC prohibited the Garcias from bringing witnesses
because “their testimony could not possibly be confirmed,” and he heavily re-
dacted the Garcias’ evidence for entheta before giving it to the arbitrators.
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18-13452 ROSENBAUM, J., dissenting 7
counsel for the Church conceded in his letter referenced above, the
IJC simply made things up as the “arbitration” proceeded.
We review the district court’s factual findings for clear error.
Smith v. Owens, 13 F.4th 1319, 1325 (11th Cir. 2021). As we have
explained, “[a] factual finding is clearly erroneous if the record lacks
substantial evidence to support it or we are otherwise left with the
impression it is not the truth and right of the case—a definite and
firm conviction that a mistake has been committed.” Knight v.
Thompson, 797 F.3d 934, 942 (11th Cir. 2015) (cleaned up). On this
record, I see no basis for concluding that the district court’s factual
findings in these regards were clearly erroneous. Nor has the
Church even suggested they are. So our legal analysis must ac-
count for these facts.
II.
As the Majority Opinion notes, under the Federal Arbitra-
tion Act, a federal court must stay or dismiss a lawsuit and compel
arbitration when “the plaintiff entered into a written arbitration
agreement that is enforceable under ordinary state-law contract
principles,” and “the claims before the court fall within the scope
of that agreement.” Lambert v. Austin Ind., 544 F.3d 1192, 1195
(11th Cir. 2008) (internal quotation marks omitted) (citing 9 U.S.C.
§§ 2-4). Here, the “ordinary state-law contract principles” we must
apply are those of Florida. 3
3 Although the arbitration agreements do not include a choice-of-law clause,
the district court concluded that Florida law governed because, under Florida
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8 ROSENBAUM, J., dissenting 18-13452
Under Florida law, a valid arbitration agreement must “es-
tablish the basic terms of an arbitration proceeding such as the form
and procedure for arbitration, the number of arbitrators, how the
arbitrators [a]re to be selected, . . . [and] the issues to be decided by
arbitration.” Malone & Hyde, Inc. v. RTC Transp., Inc., 515 So. 2d
365, 366 (Fla. 4th DCA 1987). By separately identifying “the form
and procedure for arbitration,” “the number of arbitrators,” and
“how the arbitrators [a]re to be selected,” Malone & Hyde neces-
sarily indicates that “the form and procedure for arbitration” are
different things than “the number of arbitrators” and “how the ar-
bitrators were to be selected.”
I agree with the Majority Opinion that the arbitration agree-
ments here sufficiently identified the issues to be arbitrated, the
number of arbitrators, and the manner by which they were to be
selected. But I part company with the Majority Opinion when it
comes to “the form and procedure for arbitration.”
To conclude that the arbitration agreements sufficiently
stated “the form and procedure for arbitration,” the Majority Opin-
ion relies primarily on the procedure set forth in the enrollment
choice-of-law principles, the rule of lex loci contractus applies. Doc. 189 at 5
(citing State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160, 1163 (Fla.
2006)). That rule provides that the law of the place where the contract was
executed—meaning “where the last act necessary to complete the contract
was done”—controls. Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking,
Inc., 363 F.3d 1089, 1093 (11th Cir. 2004) (citation and internal quotation marks
omitted). Here, the district court found that was Florida. The parties do not
challenge this finding on appeal.
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18-13452 ROSENBAUM, J., dissenting 9
agreement for selecting arbitrators. But as I have noted, “the form
and procedure for arbitration” is different and separate from the
“number of arbitrators” and “how the arbitrators [a]re to be se-
lected.” So the procedure for selecting arbitrators can’t also stand
in as “the form and procedure for arbitration.”
Plus, when it came to “the form and procedure for arbitra-
tion,” the arbitration agreements themselves specified that “bind-
ing religious arbitration procedures” and “binding religious arbitra-
tion in accordance with the arbitration procedures of Church of
Scientology International” would govern. Just two problems with
that: as the district court concluded, there were no such things,
and the Church had never once conducted an arbitration. Given
that the rules identified in the agreement didn’t exist and the Gar-
cias could not have looked to any precedent for the rules and pro-
cedures because the Church had never conducted an arbitration
previously, it’s hard to conceive of how the Garcias could have had
even “some idea” of the arbitration form and procedures that
would apply at the time they signed the agreements (or even at the
time the arbitration began, for that matter). See Maj. Op. at 18
(quoting Greenbrook NH, LLC v. Est. of Sayre ex rel. Raymond,
150 So. 3d 878, 881 (Fla. 2d DCA 2014)).
Nor, contrary to the Majority Opinion’s conclusion, is the
agreements’ provision that arbitration would be “conducted in ac-
cordance with Scientology principles” enough. First, this aspect of
the Majority Opinion ignores the fact that the arbitration agree-
ments promised that dispute resolution would occur through
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10 ROSENBAUM, J., dissenting 18-13452
“binding religious arbitration procedures” and “binding religious
arbitration in accordance with the arbitration procedures of
Church of Scientology International.” It offers no answer as to
what these things were at the time the Garcias entered the agree-
ments other than to refer to the method for selecting arbitrators—
which, as I have noted, is separately accounted for and not a part
of “the form and procedure for arbitration”—and to refer generally
to “Scientology principles.”
But as noble as religious principles may be, no matter the
religion—Scientology, Christianity, Judaism, Islam, or any other—
religious principles are not arbitration procedures and do not and
are not meant to establish a form for conducting arbitration. And
saying an arbitration will be “conducted in accordance with Scien-
tology principles” is a lot like saying a football game will be played
in accordance with Scientology principles or principles of any other
religion (secular Alabama Football Religion aside—I’m talking to
you, Chief), such as Christianity, for example. What does that
mean? Will it be tackle, touch, flag, or something else? Will there
be eleven people on a team? Will there be four downs? Will the
teams have to pick up ten yards within those four downs to receive
another four downs? Will the field be 100 yards long? Will holding
qualify for a penalty? How about clipping? False starts? And if so,
what will those penalties be? Will there be touchdowns, field goals,
extra points, safeties, and two-point conversions? If so, how much
will each count? And so on.
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18-13452 ROSENBAUM, J., dissenting 11
Religious principles are no more meaningful in identifying
the form and procedure of arbitration than they are in establishing
the form and procedure of a football game. Will the parties be per-
mitted attorneys? Will they be allowed to put on evidence? Cross-
examine witnesses? Make statements themselves? Present argu-
ment? For those matters, will the parties even be allowed to be
present for the arbitration, or will it be determined on submissions?
The fact is, a vague statement that arbitration will be “con-
ducted in accordance with Scientology principles” answers none of
these or any other procedural or format questions. And that is es-
pecially the case here, where the Church had never conducted a
single arbitration before the Garcias’. So perhaps it is not surprising
that the district court found the Church had no rules and proce-
dures for conducting the arbitration.
Yet the Majority Opinion insists that the district court made
a factual finding “that the Garcias had ‘some idea’ about the arbi-
tration procedures,” based on “Luis’s testimony that he was a ‘com-
mitted Scientologist and that he had ‘successfully completed the
“Ethics Specialist Course,” during which he studied . . . the Com-
mittee on Evidence and its procedures, as well as the Scientology
Justice System.’” Maj. Op. at 19. But the district court did not de-
scribe this conclusion as a factual finding. Rather, at best, the dis-
trict court characterized its conclusion that the Garcias had “some
idea” about the arbitration procedures as a mixed question of law
and fact (see Dist. Ct. Ord. at 15 (stating that it arrived at this con-
clusion after “[a]pplying these principles [of law]”). And a review
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12 ROSENBAUM, J., dissenting 18-13452
of the district court’s analysis shows that to be the case. See United
States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008) (holding that ap-
plication of the law to facts determined by the district court pre-
sents a mixed question of law and fact). So the district court’s con-
clusion is subject to de novo review. See id.For the reasons I have discussed, though, the district court’s
conclusion that the Garcias had “some idea” of the form and pro-
cedures of the arbitration was not correct, based on the district
court’s own factual findings, which were not clearly erroneous.
The problem with concluding that Luis Garcia must have had
“some idea” of the form and procedure for the arbitration based on
his testimony that he completed the “Ethics Specialist Course,”
where he studied the Committee on Evidence and its procedures
and the Scientology Justice System is that that district court ex-
pressly found that the Committee on Evidence did not provide any
procedures for arbitration. And as I have noted, the district court
likewise determined that the Church could point to nothing—in-
cluding the Scientology Justice System—to identify any procedures
for arbitration. So again, it is not clear to me how Garcia’s study of
the Committee on Evidence and the Scientology Justice System—
neither of which refers to any procedures of arbitration because,
again, none existed at the time Garcia studied the Committee on
Evidence and the Scientology Justice System—could have given
the Garcias any idea of the procedures of arbitration.
Indeed, the Church could point to nothing that the court
found would advise the Garcias of the arbitration rules and
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18-13452 ROSENBAUM, J., dissenting 13
procedures (because there weren’t any) or would rein in the
Church’s conduct of the arbitration (because no rules and proce-
dures bound the Church). The Church’s failure to identify even
the most fundamental aspects of the form and procedures govern-
ing the arbitration allowed the Church to supply answers that best
suited it in the moment. And that circumstance rendered the arbi-
tration agreements invalid under Florida law.
I can perceive no meaningful difference between the arbitra-
tion agreements here and the one ruled invalid in Spicer v. Tenet
Fla. Physician Servs., LLC, 149 So. 3d 163 (Fla. 4th DCA 2014).
In Spicer, the arbitration agreement stated, “[Y]ou agree that
any and all disputes regarding your employment . . . are subject to
the Tenet Fair Treatment Process [“FTP”], which includes final
and binding arbitration. You also agree to submit any such disputes
for resolution under that process . . . .” 149 So. 3d at 164 (alteration
in original). But the FTP was not attached to the agreement, and
the agreement did not explain how the employee could access the
FTP. Id.
So the court concluded the agreement did not bind the em-
ployee to arbitration. Id. at 166. As the court explained, the agree-
ment itself did “not set forth any procedures for arbitration as re-
quired by Malone.” Id. (emphasis omitted). Nor did the agreement
incorporate the FTP by reference. Id. at 166-67. Spicer stated that
incorporation by reference required “the incorporating document
. . . (1) [to] specifically provide that it is subject to the incorporated
collateral document[,] and (2) the collateral document to be
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14 ROSENBAUM, J., dissenting 18-13452
incorporated must be sufficiently described or referred to in the in-
corporating agreement so that the intent of both parties may be
ascertained.” Id. at 166. In Spicer, the court determined that the
second condition was not met. Id. at 167-68.
The Garcias’ case is even more compelling than Spicer. At
least in Spicer, the FTP existed somewhere at the time the parties
signed the agreement referencing it. In contrast, the “binding reli-
gious arbitration procedures” that the Garcias’ arbitration agree-
ments referred to did not.
Not only that, but in Spicer, the employee actually received
an electronic copy of the FTP seventeen days after she signed the
agreement and well before she had a dispute with the company.
See id. at 165. Here, as we know, the Garcias never received a copy
of the “binding religious arbitration procedures” because they did
not exist until the IJC made them up on the spot.
The Majority Opinion does not meaningfully explain why
Spicer does not require the conclusion that the arbitration agree-
ments here were invalid. See Maj. Op. at 19. Instead, it says that
“[t]he Garcias’ agreements provided that the arbitration would be
‘[i]n accordance with the discipline, faith, internal organization,
and ecclesiastical rule, custom, and law of the Scientology reli-
gion.’” Id. But again, since the district court found as a matter of
fact that “the discipline, faith, internal organization, and ecclesias-
tical rule, custom, and law of the Scientology religion” did not in-
clude any arbitration procedures and the Church had never previ-
ously conducted an arbitration and concededly made up the
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18-13452 ROSENBAUM, J., dissenting 15
arbitration rules as the arbitration progressed, the reference in the
Garcias’ agreement on which the Majority Opinion relies provides
no answer to the form and procedures for the arbitration.
The Majority Opinion also rests on Intracoastal Ventures
Corp. v. Safeco Ins. Co. of Am., 540 So. 2d 162 (Fla. 4th DCA 1989),
abrogated on other grounds as recognized in Nationwide Mut. Fire
Ins. Co. v. Schweitzer, 872 So. 2d 278, 279 (Fla. 4th DCA 2004), and
Greenbrook NH, LLC v. Est. of Sayre ex rel. Raymond, 150 So. 3d
878 (Fla. 2d DCA 2014). But both are materially distinguishable.
The arbitration requirement in Intracoastal Ventures in-
volved an appraisal provision in an insurance contract. Intracoastal
Ventures, 540 So. 2d at 163. Under it, if the insured and the insurer
could not agree on the amount of a covered loss, the contract re-
quired them to each select “a competent independent appraiser.”
Id. Then the two selected appraisers were to choose “a competent,
impartial umpire.” Id. If the two appraisers could not agree, either
or both parties could petition a judge in the state to select an um-
pire. Id. With the appraisers and umpire selected, the appraisers
were to set the amount of the loss. Id. If they could not agree, they
were to submit their differences to the umpire, and written agree-
ment by any two of the three would establish the amount of the
loss. Id. The Florida District Court of Appeal upheld the arbitra-
tion requirement because it found that the provision satisfied the
requirements set forth by Malone & Hyde. Id. at 164.
The provision in Intracoastal Ventures differs with regard to
“the form and procedure for arbitration,” Malone & Hyde, 515 So.
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16 ROSENBAUM, J., dissenting 18-13452
2d at 366, in important respects from the arbitration agreement at
issue here. Notably, the Intracoastal Ventures arbitration con-
cerned only “amount of the loss.” Intracoastal Ventures, 540 So.
2d at 163. For that reason, the provision had to establish only a
form and procedure for determining the amount of the loss. By
requiring both appraisers to be “competent” and “independent”
and the umpire to be “competent and impartial,” the provision nec-
essarily demanded that all three decision-makers involved in the
arbitration be competent appraisers—that is, that they adequately
apply generally accepted appraisal methods in performing apprais-
als.
In other words, by requiring that the appraisers be “compe-
tent” and “independent” and the umpire by “competent and impar-
tial,” the arbitration provision in Intracoastal Ventures established
the procedure by which the appraisal (and thus, the arbitration)
would be determined—the application of generally accepted ap-
praisal methods. Put simply, the Intracoastal Ventures provision
effectively incorporated generally accepted appraisal methods, in
conjunction with its specified procedure for breaking a tie between
the arbitrators, as its procedural mechanism (rules) for conducting
the arbitration once the arbitrators (appraisers and umpire) were
selected.
In contrast, the Scientology provision ties the arbitration
form and procedure to no set of rules other than the non-existent
“binding religious arbitration procedures” of the Church. So unlike
in Intracoastal Ventures, where anyone who read the arbitration
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18-13452 ROSENBAUM, J., dissenting 17
provision could understand the rules and procedure by which the
subject matter there—amount of the loss—would be determined,
here, the arbitration agreements give no idea of the form and pro-
cedure the arbitration itself will take. For that reason, the basis for
upholding the Intracoastal Ventures agreement does not exist here.
As for Greenbrook, there, the parties adopted the Florida Ar-
bitration Code, Fla. Stat. §§ 682.01-.22, as a part of their arbitration
agreement. 450 So. 3d at 882. So there was no issue that the arbi-
tration agreement did not set forth the form and procedure of the
arbitration. See id. But again, that’s not the situation here.
Though Florida law governs the contract principles here, the par-
ties did not adopt the Florida Arbitration Code, so those rules
didn’t apply to the arbitration here.
III.
Ultimately, the arbitration agreements at issue here are not
valid under Florida law. They do not identify “the form and pro-
cedure” of the arbitration as Florida law requires. Worse yet, at
the time they were entered and at the time of the so-called arbitra-
tion here, the agreements purported to incorporate non-existent
rules and procedures. As a result, the Church was able to make up
the arbitration rules as the arbitration progressed. We should not
condone—let alone sanction—this type of arbitrary and unfair pro-
ceeding in the name of the Federal Arbitration Act. I respectfully
dissent.