William Attix v. Carrington Mortgage Services, LLC

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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20-13575 Opinion of the Court 3

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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14 Opinion of the Court 20-13575

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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18 Opinion of the Court 20-13575

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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20 Opinion of the Court 20-13575

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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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.

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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.