United States Court of Appeals

for the Fifth Circuit ___________ 

No. 21-50253

___________ 

Kenneth Newman, individually and, on behalf of All Others 

Similarly Situated,

Plaintiff—Appellee,

Cypress Environmental Management-TIR, L.L.C.,

Intervenor—Appellee,

versus

Plains All American Pipeline, L.P.,

Defendant—Appellant.

______________________________ 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:19-CV-244 

______________________________ 

ON PETITION FOR REHEARING EN BANC

Before King, Costa, and Willett, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel 

rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is 

DENIED. The petition for rehearing en banc is DENIED because, at the 

United States Court of Appeals

Fifth Circuit

FILED

August 5, 2022

Lyle W. Cayce

Clerk
No. 21-50253

2

request of one of its members, the court was polled, and a majority did not 

vote in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35).

In the en banc poll, 8 judges voted in favor of rehearing (Judges Jones, 

Smith, Elrod, Southwick, Ho, Duncan, Oldham, and Wilson), and 8 voted 

against rehearing (Chief Judge Richman, and Judges Stewart, Haynes, 

Graves, Higginson, Costa, Willett, and Engelhardt).

*

* Judge James L. Dennis did not participate in the consideration of the rehearing en banc.
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

1

Edith H. Jones, Circuit Judge, joined by Smith and Duncan, Circuit Judges, 

dissenting from denial of en banc rehearing

With respect, the panel seriously misconstrues the law governing arbitration. We 

are now out-of-step with at least five other circuits (to say nothing of the Supreme Court) 

and appear to be in accord with none. The panel otherwise disregards our own precedents. 

This case should have been reheard en banc to harmonize our court with other circuits and 

to follow the Supreme Court. I respectfully dissent.

The panel opinion sets our court on a unique course concerning employees 

discontented with formal employment contracts that (a) envisioned their providing work 

on third-party projects and (b) contained full-throated AAA arbitration clauses. 

Contravening the Supreme Court in Rent-A-Center, W., Inc. v. Jackson1 and numerous 

circuits, the panel opinion holds that, despite a delegation clause in the arbitration 

agreement, the “gateway question”—whether the plaintiff’s dispute with the nonsignatory project owner is arbitrable—was not for the arbitrator. But as an alternative, even 

if the question of arbitrability belonged to the federal court in the first instance, the panel 

should have concluded that Texas law would compel arbitration with the non-signatory 

project owner as a matter of intertwined claims estoppel. Each error deserves elaboration.

This case was filed by a plaintiff, Newman, who entered a written employment 

contract with an energy industry staffing company, Cypress, to perform work for a 

particular client, Plains. Cypress determined his rate of pay, cut his paychecks, handled 

Human Resources tasks, and prepared the parties’ arbitration clause broadly covering all 

disputes arising from his employment. After he quit work with Cypress, Newman sued 

Plains—but not Cypress—for allegedly violating the FLSA.2 Thus, he contrived to avoid 

his arbitration agreement with Cypress. If Newman eventually prevails against Plains, 

however, Cypress may well be on the hook for any unpaid overtime because of its affiliate’s

indemnity agreement with Plains. These arrangements, and a bevy of lawsuits like 

Newman’s, have become common in the energy industry.

1 561 U.S. 63, 72-73, 130 S. Ct. 2772, 2779-80 (2010).

2 Several other former Cypress employees opted in to Newman’s suit pursuant to the FLSA.
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

2

I.

Compelling arbitration requires a two-step inquiry. See Kubala v. Supreme Prod. 

Servs., Inc., 830 F.3d 199, 201 (5th Cir. 2016). “[T]he only issue at the first step is whether 

there is any agreement to arbitrate any set of claims.” Id. at 202. Here, Newman agreed in 

broad terms according to the AAA to arbitrate claims arising out of his employment. The 

second step inquiry is “whether . . . the claim currently before the court[]” falls within the 

set of claims covered by the arbitration agreement. Id. But the court cannot reach that 

second question if the parties delegated it to an arbitrator in the first place. Id. at 201.

The Supreme Court tells us that “parties can agree to arbitrate ‘gateway’ questions 

of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their 

agreement covers a particular controversy.” Rent-A-Center, 561 U.S. at 70, 130 S. Ct. at 

2777 (citations omitted) (emphasis added). Another gateway issue includes “whether an 

arbitration clause binds persons who did not sign it[.]” 13D Charles Alan Wright 

& Arthur R. Miller, Federal Practice and Procedure § 3569 n.53 (3d ed. 

Apr. 2022 update). A delegation provision consenting to arbitrate these issues “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.” Rent-A-Center, 561 U.S. at 70, 130 S. Ct. at 2777-78. “[S]o the question ‘who 

has the primary power to decide arbitrability’turns upon what the parties agreed about that 

matter.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 1923

(1995) (emphasis in original). Consequently, “if a valid agreement exists, and if the 

agreement delegates the arbitrability issue to an arbitrator, a court may not decide the 

arbitrability issue.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530 

(2019). “[W]ho decides whether a particular dispute is arbitrable[]” therefore precedes the 

question whether a dispute is arbitrable. Peabody Holding Co. v. United Mine Workers, 

665 F.3d 96, 101 (4th Cir.2012) (emphasis in original). “If—but only if—the answer [to 

whether the parties delegated arbitrability] is no, the court must then proceed to determine 

on its own whether the parties’ dispute falls within the scope of their agreement to 

arbitrate.” VRG Linhas Aereas S.A. v. MatlinPatterson Glob. Opportunities Partners II L.P., 

717 F.3d 322, 326 (2d Cir. 2013).
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

3

Based on these principles, it should have been easy to conclude that an arbitrator 

must decide whether Newman must arbitrate with Plains. The Newman-Cypress

agreement “clearly and unmistakably”3 delegates to the arbitrator 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.”4 Am. Arbitration Ass’n, Employment 

Arbitration Rules and Mediation Procedures, R. 7(a) (Oct. 1, 2013), 

https://www.adr.org/sites/default/files/Commercial%20Rules.pdf. Of course “[a]ny 

[objections] means all [objections], because any means all.” Anders v. Hometown Mortg. 

Servs., Inc., 346 F.3d 1024, 1028 (11th Cir. 2003) (internal quotation marks and citations

omitted). And Newman’s “employment [was] based on a specific project to be performed 

for a designated customer[,]” Plains. That Plains was not a formal party to the arbitration 

agreement does not rule it out from potential arbitration according to state-law interpretive 

principles. See, e.g., Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624 (Tex. 

2018) (citing In re Kellogg Brown & Root, Inc., 166 S.W.3d at 739)).

But the panel decision never touches the delegation provision because it mistakenly 

assesses “enforceability between the parties [i.e. whether a non-signatory can enforce an 

arbitration agreement]. . . . as part of the first-step, formation question.” In doing so, it 

modifies the first step to address whether a valid agreement exists between these specific 

parties. Yet, “whether [a non-signatory like Plains] can enforce the arbitration agreement 

against [a signatory like Newman] presents a question of arbitrability that [the signatory’s]

arbitration agreement delegated to an arbitrator.” Swiger v. Rosette, 989 F.3d 501, 507 (6th 

Cir. 2021). Courts can only assess the enforceability of a delegation clause by a nonsignatory if the signatory “challenge[s] the delegation provision specifically[.]” Rent-ACenter, 561 U.S. at 72, 130 S. Ct. at 2779. Newman raised no such argument. Accordingly,

“we must treat [the delegation provision] as valid under § 2 [of the FAA], and must enforce 

3 See First Options of Chicago, 514 U.S. at 944, 115 S. Ct. at 1924 (internal quotation marks and 

citations omitted) (“[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there 

is clea[r] and unmistakabl[e] evidence that they did so.”). 4 “[T]he express adoption of [AAA] rules presents clear and unmistakable evidence that the parties 

agreed to arbitrate arbitrability.” Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 

(5th Cir. 2012) (collecting cases); see also Archer & White Sales, Inc. v. Henry Schein, Inc., 935 F.3d 274, 280 

(5th Cir. 2019), cert. granted, 141 S. Ct. 107 (2020), and cert. denied, 141 S. Ct. 113 (2020) (citation omitted).
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

4

it under §§ 3 and 4, leaving any challenge to the validity of the Agreement as a whole for 

the arbitrator.” Id.

Allowing Newman to avoid arbitrating the arbitrability of his claim against Plains 

contravenes not only Rent-A-Center but also this court’s precedent, which explains that

“we must first determine whether claims against [non-signatories are] clearly and 

unmistakably delegated to the arbitrator.”5

 Brittania-U Nigeria, Ltd. v. Chevron USA, Inc., 

866 F.3d 709, 715 (5th Cir. 2017). Issues concerning the parties’ relationships and the types

of claims in the underlying suit are subordinate to the exclusive focus at this juncture, which 

is simply “who should decide whether the parties have to arbitrate the merits.” Blanton v. 

Domino’s Pizza Franchising LLC, 962 F.3d 842, 852 (6th Cir. 2020) (emphasis in original).

Brittania-U, contrary to the panel’s reasoning, mandates arbitration where, as here, the 

question of arbitrability was delegated to the arbitrator.

6

5 The panel opinion assertsthat Sherer v. Green Tree Servicing LLC supports its reasoning. 548 F.3d 

379 (5th Cir. 2008) (per curiam). There, a borrower brought various claims against his loan servicer; the 

servicer then sought to compel arbitration based on an agreement between the borrower and his lender. Id. 

at 380. The court first assessed “whether a valid agreement to arbitrate exist[d]” between the parties. Id. 

at 382-83. But there was no delegation clause, much less one governed by AAA Rules. Sherer is thus totally 

inapposite.

6 Unlike the panel, lower courts in this circuit have adopted the core reasoning of Brittania-U. For 

example, in Doucet v. Boardwalk Pipelines, L.P., “the worker chose to bring an FLSA claim against the 

company they were assigned to for work, not their employer[]” because they signed an arbitration 

agreement with the former. No. 4:20-CV-1793 2021 WL 3674975, *4 (S.D. Tex. Mar. 18, 2021). The 

magistrate judge found “that the scope of the delegation clause cover[ed] [the plaintiff’s] claims[]” against 

the non-signatory defendant. Id. at *3. The district court then adopted that recommendation, ruling that 

“a valid arbitration clause exists with a delegation clause leaving the question of arbitrability to the 

arbitrator.” No. 4:20-CV-1793, 2021 WL 5865704, *1 (Dec. 10, 2021).
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

5

Equally distressing, the panel’s opinion puts this court out of step with at least five 

(if not more) of our sister circuits.7

 Casa Arena Blanca LLC v. Rainwater, 2022 WL 839800, 

*1 (10th Cir. Mar. 22, 2022) (unpublished); Eckert/Wordell Architects, Inc. v. FJM Props. of 

Willmar, LLC, 756 F.3d 1098, 1099 (8th Cir. 2014); Contec Corp. v. Remote Sol. Co.,

398 F.3d 205, 209-11 (2d Cir. 2005); Apollo Comput., Inc. v. Berg, 886 F.2d 469, 472-74 (1st

Cir. 1989).

Most notable is the panel decision’s conflict with Becker v. Delek US Energy, Inc.,

where an electrical inspector signed an employment agreement with Cypress that 

contained an arbitration clause. See 39 F.4th 351 (6th Cir. July 6, 2022). Cypress assigned 

the employee to work at the non-signatory defendant’s facility. Id. at 354. The employee 

later sued the non-signatory defendant for FLSA violations. Id. Cypress intervened, and 

the district court denied its motion to compel arbitration along with one filed by the nonsignatory defendant. Id. Sound familiar? The facts are identical to those at issue here. 

The Sixth Circuit reversed. The court first reiterated its understanding that “[w]hether a 

non-signatory can enforce a delegation clause is likewise a question of enforceability, not 

existence.” Id. at 356. Because the employee did not “separate his analysis of the 

enforceability of the delegation provision from his analysis of the enforceability of the 

arbitration agreement as a whole[,]” the court enforced the delegation clause, “leaving the 

question whether [the employee could] enforce the arbitration agreement for an arbitrator 

to decide.” Id.

The panel opinion diverged from Becker and numerous other courts without even 

acknowledging conflicting precedents. Because Newman clearly and unmistakably agreed

to arbitrate arbitrability, the panel should have reversed and remanded with instructions to 

compel the arbitration of arbitrability. To conclude otherwise is manifest error. This 

decision is in accord with no other circuit (including our own) and renders delegation 

clauses second-class contracts in this circuit. So much for construing contracts “to give 

effect to the intent of the parties . . . so that every clause has some effect, and no clause is 

rendered meaningless.” REO Indus., Inc. v. Natural Gas Pipeline Co. of America, 932 F.2d 

447, 453 (5th Cir.1991) (citations omitted).

7 Though the Seventh Circuit has not yet officially adopted this approach, at least one district court 

recently ruled that “the question of whether a purported non[-]signatory can enforce an arbitration 
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

6

II.

Even if Newman had not entered a contract that delegates arbitrability to the 

arbitrator (which he did), the panel should have interpreted Texas law to compel his 

arbitration with Plains based on a theory of intertwined claims estoppel.

“[A]llowing litigation to proceed that is in substance against a signatory though in 

form against a nonsignatory would allow indirectly what cannot be done directly.” In re 

Merrill Lynch Tr. Co. FSB, 235 S.W.3d 185, 194 (Tex. 2007). With this principle in mind, 

the Texas Supreme Court has explained, without expressly adopting the theory, that nonsignatories can invoke intertwined claims estoppel to “successfully compel arbitration 

when (1) they have a ‘close relationship’ with a signatory to a contract with an arbitration 

agreement and (2) the claims are ‘intimately founded in and intertwined with the 

underlying contract obligations.’” Jody James Farms, 547 S.W.3d at 639 (quoting 

Thomson–CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 779 (2d Cir. 1995)). In other 

words, the theory applies where there is “‘tight relatedness of the parties, contracts, and 

controversies.’” Hays v. HCA Holdings, Inc., 838 F.3d 605, 610 (5th Cir. 2016) (quoting 

JLM Industries, Inc. v. Stolt–Nielsen, SA, 387 F.3d 163, 177 (2d Cir. 2004)).

In Jody James Farms, the Texas Supreme Court rejected intertwined claims estoppel 

on the facts because the contractual relationship between an insurer and an independent

insurance agency wastoo tenuous. 547 S.W.3d at 640. Thatrelationship, however, is much 

different from the contracts among Newman,Cypress, and Plains. Cypress hired Newman,

and he agreed to arbitrate any and all disputes arising out of his employment. Critically, his

“initial compensation [was] set forth in [an] Inspector Pay Offer[]” that listed “Plains –

agreement concerns a question of arbitrability and, thus, must be decided by the arbitrator.” Grabowski v. 

Platepass, LLC, No. 20-CV-7003, 2021 WL 1962379, *4 (N.D. Ill. May 17, 2021) (collecting case discussed 

below). At least two district courts within the Third Circuit are in accord. See Altenhofen v. Energy Transfer 

Partners, LP, No. 20-CV-200, 2020 WL 7336082, *1 & n.1 (W.D. Pa. Dec. 14, 2020) (citation omitted)

(holding that, where plaintiffs sued their employer’s non-signatory client for FLSA violations, “[w]hether 

[the client defendant] may enforce the agreements, as a non-signatory, is a question reserved for 

arbitration,” and that “Plaintiffs cannot avoid their arbitration agreements by omitting claims against [the 

actual employers] or any like ‘staffing’ company”); see also Robertson v. Enbridge (U.S.) Inc., No. 19-CV1080, 2020 WL 5751641, *5 (W.D. Pa. July 31, 2020) (citations omitted), report and recommendation adopted, 

No. 2:19-cv-1080, 2020 WL 5702419 (Sept. 24, 2020) (“[i]n light of Henry Schein and the clear language of 

the Arbitration Agreement, whether [a non-signatory defendant] may enforce the Arbitration Agreement 

against [signatory] Plaintiffs is a question for the arbitrator.”).
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

7

Pipeline” as the client for which he would provide services.8 That offer was both 

referenced within and attached to the “inspector employment agreement” he signed. The 

employment agreement also made clear that Plains could tell Newman that his “services 

[were] no longer required[.]” A reasonable person in Newman’s position would have 

therefore understood from the outset that his employment was subject to any agreements 

between Cypress and Plains. Indeed, the Master Services Contract between Plains and 

Cypress’s affiliate, Tulsa Inspection Resources, LLC (“TIR”), separately required the 

staffing company to “release, protect, indemnify, hold harmless, and defend 

[Plains] . . . from and against any and all . . . ‘claims’ for or relating to . . . any violation or 

alleged violation of state or federal law related to the payment, employment, or 

employment status of any of [Cypress’s] employees.”9 Plains has since demanded 

indemnity from Cypress as TIR’s affiliate. Plains therefore has a sufficiently close 

relationship with Cypress to compel Newman to arbitrate pursuant to intertwined claims 

estoppel. The panel points to no Texas authorities rejecting intertwined claims estoppel in 

these circumstances. In particular, and contrary to the panel decision, no Texas case says 

that corporate affiliation is necessary to apply intertwined claims estoppel.

Moreover, the panel declined to follow this court’s remarkably similar decision that 

did apply intertwined claims estoppel. See Trujillo v. Volt Management Corp., 846 F. App’x

233 (5th Cir. 2021). There, a staffing company employed the plaintiff to “work[] as an onsite coordinator at [her employer’s client] and handled human resources functions for 

employees that [her employer] leased to [the client].” Id. at 234. She later sued both her 

employer and its client, and the employer moved to compel arbitration based on her signed 

agreement with it. Id. at 235. The district court compelled the plaintiff to arbitrate with 

her employer’s client (a non-signatory) “because the claims and factual allegations raised 

by [the plaintiff] against [her employer] and [its client were] indistinguishable and her 

claims against [the client were] intimately founded in and intertwined with [the plaintiff’s] 

underlying contract with [her employer].” Id. at 237 (internal quotation marks and citation 

8 Another Plaintiff averred that he “was financially dependent on Plains through TIR[]” and 

“relied on Plains as [his] joint employer . . . .”

9 “Cypress employs inspectors who staff projects contracted by [TIR].” TIR, in turn,” directs

Cypress’ employees to provide the inspection services to Plains.” Both are controlled by Cypress Energy 

Partners, L.P. And all three entities are referenced on Newman’s pay offer letter.
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

8

omitted). “The district court also found a tight relatedness of the parties, contracts, and 

controversies.” Id. This court affirmed. Id.

10 As in Trujillo, but unlike Jody James, the 

business relationships here reflect a “close relationship.”

The sound reasoning of Trujillo is confirmed by the facts of this case. As Plains 

explained, Newman’s claims are “based on (1) the work [he] performed providing services 

for Plains under [his] Employment Agreement, as to which work [he] allege[s] Plains was 

[his] alleged “joint employer” (with Cypress); and (2) the payments [he] received for such 

work as part of [his] employment with Cypress under [his] Employment Agreement.” 

Absent the signed employment agreement, Newman and the other plaintiffs “(1) would 

not have been employed by Cypress, (2) would not have provided the services to Plains 

which they now claim entitle them to overtime pay from Plains, and (3) would not have the 

ability to make FLSA claims against Plains.” Finally, the case against Plains is heavily 

dependent on personnel records and witnesses of Cypress, which, to repeat, has an 

indemnification agreement with Plains. If these circumstances do not suggest that 

Newman’s claims against Plains are sufficiently intertwined with his employment 

agreement with Cypress, it is hard to envision what would suffice. And above all, the point 

of compelling a non-party to arbitrate its dispute with the signatory to an arbitration 

agreement is to prevent the patent inequity of allowing the signatory to circumvent 

arbitration, to the obvious detriment of its counter-party signatory.

10 “[U]npublished decisions, of course, are not binding on our court; they are, however, 

persuasive.” United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010) (citations omitted). Thus, while 

the majority is not technically bound by Trujillo, it must not refuse to apply its reasoning and holding to 

similar facts without explanation. To avoid applying unpublished decisions based on flimsy distinctions 

does not honor their persuasive weight, which does conflict with our rules and published decisions.
Newman v. Plains All Am. Pipeline, L.P., No. 21-50253; 

Newman v. Cypress Environmental Mgmt., No. 21-51089

9

In sum, the panel has misconstrued Texas law.11

III.

Newman signed an agreement to delegate arbitrability that referenced not only TIR

and Cypress but also Plains. By virtue of the delegation, an arbitrator should have 

addressed arbitrability in the first instance. In the alternative, under Texas law intertwined 

claims estoppel requires arbitrating the merits because the relationship between Plains and 

Cypress is sufficiently close and Newman’s FLSA claim is intimately intertwined with his 

employment contract.

I respectfully dissent.

11 Even if Newman did not agree to delegate arbitrability to the arbitrator, there is a strong argument 

that Cypress should be able to compel as an aggrieved party under Section 4 of the FAA. 9 U.S.C. § 4. 

Cypress became a party after intervening as a matter of right in the district court. See Donovan v. Oil, 

Chemical, ect. Local 4-23, 718 F.2d 1341, 1350 (5th Cir. 1983), cert. denied, 466 U.S. 971, 104 S. Ct. (1984) 

(quotations and citations omitted). Cypress is aggrieved because, as the district court ruled, it “clearly 

shares a defense with Plains that is central to the main case—that Newman was properly classified as 

overtime exempt under the FLSA.” Indeed, “any judgment that Newman was not properly paid requires 

examining Cypress’s actions in determining his exemption.” And “Newman’s avoidance of his individual 

arbitration agreement could end up costing Cypress significant amounts through either . . . indemnity or 

through joint liability.” The panel should have consolidated the appeals of the two defendants, and Cypress

had good grounds to litigate its indemnity or other obligations by compelling Newman to arbitrate even 

though his claims are nominally only against Plains. The panel in Newman v. Cypress Environmental Mgmt.,

an appeal from the same district court, erred by holding otherwise. 2022 WL 1114407 (5th Cir. Apr. 14, 

2022) (per curiam).