United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-11026 

____________ 

Ascension Data & Analytics, L.L.C.; Rocktop Partners, 

L.L.C.; Rocktop Holdings, II, L.L.C., 

Plaintiffs—Appellants, 

versus

Pairprep, Incorporated, doing business as OpticsML, 

Defendant—Appellee. 

______________________________ 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:23-CV-552 

______________________________ 

Before Smith, Wiener, and Douglas, Circuit Judges.

Jacques L. Wiener, Jr., Circuit Judge: 

Plaintiffs-Appellants Ascension Data & Analytics, L.L.C., Rocktop 

Partners, L.L.C., and Rocktop Holdings II, L.L.C. (collectively, “Ascension”) appeal the district court’s dismissal of their application to vacate an 

arbitral award made under Section 10 of the Federal Arbitration Act 

(“FAA”), for want of jurisdiction. Finding no error, we AFFIRM. 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 25, 2024 

Lyle W. Cayce 

Clerk 

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No. 23-11026 

2 

I. Background

This appeal arises from a contractual dispute between Ascension and 

Defendant-Appellee Pairprep, Inc. (“Pairprep”). Under the parties’ 

contract, Pairprep was obligated to provide data extraction services to 

Ascension. However, that contract was terminated because of an alleged data 

breach involving Pairprep’s servers and Pairprep’s “failure to extract reliable 

data.” Ascension subsequently contracted with another vendor, Altada 

Technologies Solutions, Ltd. (“Altada”), for data extraction services, but 

that contract “was terminated early after Altada suffered a crippling financial 

crisis.” 

Ascension then initiated arbitration proceedings against Pairprep in 

Dallas, pursuant to the parties’ contract, in an attempt to recover “the 

remediation costs incurred as a result of [Pairprep’s] data breach.” 

Thereafter, Pairprep brought an action1

 against Ascension, Rocktop 

Partners, LLC, and their affiliates, in the Eastern District of Texas, in which 

Pairprep asserted claims for, inter alia, breach of contract and violation of the 

federal Defend Trade Secrets Act (“DTSA”). The district court referred

that action to the Ascension arbitration, where Pairprep “asserted 

counterclaims in the Arbitration with nearly verbatim allegations and 

essentially the same claims” as those asserted in the complaint previously 

filed in the Eastern District of Texas. However, Pairprep attempted to name 

Altada and its domestic subsidiary, Altada U.S., Inc., (together, “Altada”) 

as additional counter-respondents in the arbitration, alleging that Ascension 

and Altada “operated as a joint enterprise.” But, “[d]espite naming Altada 

as a party to the Arbitration, Pairprep never effectuated service on Altada in 

_____________________ 

1 Pairprep, Inc. d/b/a OpticsML v. Ascension Data & Analytics, LLC, No. 2:21-CV00057-JRG (E.D. Tex.). 

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3 

the Arbitration proceeding.”2 Instead, Pairprep brought another action3 in 

the Eastern District of Texas, this time against Altada, “asserting nearly 

verbatim the same claims based on the same allegations in the Arbitration.” 

Pairprep and Altada settled that litigation, and the district court dismissed 

Pairprep’s claims against Altada with prejudice. During the arbitration 

proceedings, Ascension learned of the dismissal of Pairprep’s claims against 

Altada and asserted a res judicata defense to Pairprep’s DTSA and breach of 

contract claims. The arbitration panel ultimately rejected Ascension’s 

defenses to Pairprep’s counterclaims, “including res judicata, and granted 

Pairprep a monetary award.” 

Consequently, Ascension filed an application under the FAA to vacate 

the arbitration award in the Northern District of Texas, arguing that 

“Pairprep’s [counter]claims are barred by res judicata arising from its 

dismissal with prejudice of identical claims brought against Altada in federal 

court based on the same common nucleus of operative facts.”4

 Shortly 

thereafter, Pairprep filed an application to confirm the arbitral award in 

Texas state court in Dallas County. On October 31, 2023, the state court 

confirmed the award and entered judgment in favor of Pairprep. In the federal 

proceeding, Ascension filed a motion for a preliminary injunction of the state 

court proceeding pursuant to the Relitigation Exception of the AntiInjunction Act, while Pairprep argued that Ascension’s application should be 

dismissed for lack of subject matter jurisdiction. The district court agreed 

_____________________ 

2

 Altada, as a non-signatory to the arbitration agreement, refused to consent to 

arbitration. 

3 Pairprep, Inc. d/b/a OpticsML v. Altada Tech. Sols., Ltd., No. 2:22-CV-00251-JRG 

(E.D. Tex.). 

4

 In addition to the application to vacate, Ascension also sought a declaratory 

judgment pronouncing Pairprep’s counterclaims to be “barred by res judicata.” Ascension, 

however, has abandoned its action for a declaratory judgment on appeal. 

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4 

that it lacked subject matter jurisdiction, dismissed Ascension’s application 

without prejudice, and denied its motion for preliminary injunctive relief as 

moot. Ascension timely appealed. In a pending post-briefing motion to 

dismiss the appeal as moot, Pairprep contends that we should dismiss the 

appeal because a Texas state court has already confirmed the arbitral award 

at issue.5

 

II. Discussion 

This court reviews a dismissal for lack of subject matter jurisdiction 

de novo. Pershing, L.L.C. v. Kiebach, 819 F.3d 179, 181 (5th Cir. 2016). 

The central issue on appeal concerns a district court’s subject matter 

jurisdiction to consider applications to confirm, modify, or vacate arbitral 

awards under the FAA. The FAA “authorizes a party to an arbitration 

agreement to seek several kinds of assistance from a federal court.” Badgerow 

v. Walters, 596 U.S. 1, 4 (2022). “[U]nder Sections 9 and 10 [of the FAA], a 

party may apply to the court to confirm, or alternatively to vacate, an arbitral 

award.” Id. But, although the FAA permits a party to apply to a district court 

for this type of relief, “the federal courts . . . may or may not have jurisdiction 

to decide such a request.” Id. This is because the FAA’s “authorization of a 

petition does not itself create jurisdiction. Rather, the federal court must have 

. . . an ‘independent jurisdictional basis’ to resolve the matter.” Id. (quoting 

Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582 (2008)). 

Accordingly, “an applicant seeking, for example, to vacate an arbitral award 

under Section 10 [of the FAA] must identify a grant of jurisdiction, apart 

from Section 10 itself, conferring ‘access to a federal forum.’” Id. at 8 

_____________________ 

5

 One additional motion remains pending: (1) Pairprep’s motion for the court to 

take judicial notice of the state court filings relevant to its application to confirm the arbitral 

award. We GRANT Pairprep’s motion for judicial notice. 

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(quoting Vaden v. Discover Bank, 556 U.S. 49, 59 (2009)). If the applicant 

“cannot, the action belongs in state court.” Id. Indeed, “state courts have a 

prominent role to play as enforcers of agreements to arbitrate.” Vaden, 556 

U.S. at 59; see also Badgerow, 596 U.S. at 18 (“‘[E]nforcement of the Act,’ we 

have understood, ‘is left in large part to the state courts.’” (alteration in 

original) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 

U.S. 1, 25 n.32 (1983))). 

The question becomes what may a district court look to in establishing 

an independent basis for its jurisdiction over an application to modify, 

confirm, or vacate an arbitral award under Sections 8, 9, or 10 of the FAA. 

Prior to the Supreme Court’s recent decision in Badgerow v. Walters, we 

permitted district courts to “look through” the application to the underlying 

arbitration proceeding to establish jurisdiction. See Quezada v. Bechtel OG & 

C Constr. Servs., Inc., 946 F.3d 837, 843 (5th Cir. 2020), rev’d, Badgerow, 596 

U.S. at 6–7. That changed after Badgerow, which concluded that the “look 

through” approach does not apply to applications to modify, confirm, or 

vacate arbitral awards. 596 U.S. at 5-6. Instead, “a court may look only to the 

application actually submitted to it in assessing its jurisdiction.” Id. (emphasis 

added).6

 As the Badgerow Court explained: 

If [the vacatur application] shows that the contending parties 

are citizens of different States (with over $75,000 in dispute), 

then §1332(a) gives the court diversity jurisdiction. Or if it 

alleges that federal law (beyond Section 9 or 10 itself) entitles 

the applicant to relief, then § 1331 gives the court federalquestion jurisdiction. 

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6

 This was the view of the dissent in Quezada. See 946 F.3d at 845–47 (Ho, J., 

dissenting). 

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6 

Id. at 9. Applying this standard to the vacatur application at issue, the Supreme Court in Badgerow concluded that the district court lacked subject 

matter jurisdiction, notwithstanding the existence of “a federal-law claim 

satisfying § 1331” in the underlying arbitration. Id. This is because, to establish jurisdiction based on the federal-law claim, the district court “had to proceed downward to Badgerow’s employment action.” Id. Stated differently, it 

could find an independent basis for jurisdiction only by looking through the 

vacatur application. 

Here, Ascension asks us to engage in the exact analysis precluded by 

Badgerow, viz., to find that the district court had subject matter jurisdiction 

based on (1) Pairprep’s DTSA counterclaims asserted in the arbitration proceeding, and (2) Ascension’s defense of res judicata. Ascension neither asserts that the parties are diverse nor persuasively suggests “that federal law . 

. . entitles [it] to relief.”7 Id. Thus, a straightforward application of Badgerow

compels the conclusion that the district court lacked subject matter jurisdiction over the vacatur application and was correct in granting Pairprep’s motion to dismiss. This conclusion holds notwithstanding Ascension’s contention that Pairprep’s DTSA counterclaims were originally asserted in federal 

court, and that its defense to those counterclaims in the arbitration was based 

on the purportedly preclusive effect of a separate federal judgment (Pairprep’s settled federal action against Altada). The Court in Badgerow explained it best: 

_____________________ 

7

 The closest that Ascension gets is its contention that the district court had 

independent jurisdiction to determine the preclusive effect of a federal judgment. But 

Ascension’s argument is unpersuasive because it is no more than an attempt to relitigate a 

res judicata defense that was first raised—and rejected—during the arbitration proceeding. 

Necessarily, the district court would have had to look through the application to vacate to 

the res judicata defense in the underlying arbitration to establish its jurisdiction on this 

basis. It correctly declined to do so. See Badgerow, 596 U.S. at 9. 

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Recall that the two are now contesting not the legality of 

Badgerow’s firing but the enforceability of an arbitral award. 

That award is no more than a contractual resolution of the parties’ dispute—a way of settling legal claims. And quarrels 

about legal settlements—even settlements of federal claims—typically involve only state law, like disagreements about other 

contracts. So the District Court here, as Walters recognizes, 

had to go beyond the face of the Section 9 and 10 applications 

to find a basis for jurisdiction. It had to proceed downward to 

Badgerow’s employment action, where a federal-law claim satisfying § 1331 indeed exists. In other words, the court had to 

look through the Section 9 and 10 applications to the underlying substantive dispute, although that dispute was not before it. 

Id. (emphasis added) (internal citations omitted). Similarly, on the procedural posture here, neither Pairprep’s DTSA counterclaims nor Ascension’s 

res judicata defense to those counterclaims was before the district court. The 

only dispute properly before the district court was the enforceability of the 

arbitral award. Because the parties concede that they are not diverse, and because Ascension offers no other federal law entitling it to the relief that it 

seeks—vacatur of the award—the enforceability of the arbitral award must 

be litigated in state court. See id.; see also Quezada, 946 F.3d at 846 (Ho, J., 

dissenting) (“Like arbitration agreements, settlement agreements are matters of contract, designed to resolve disputes outside of the courtroom. The 

enforcement of settlements is ordinarily a matter for state courts, not federal 

courts—even when a settlement happens to resolve federal questions.”).8

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8

 Ascension’s invocation of our unpublished decision in Rodgers v. United Services 

Automotive Association, No. 21-50606, 2022 WL 2610234, at *5 (5th Cir. July 8, 2022), does 

not undermine our conclusion. There, the issue of the district court’s jurisdiction to 

consider the parties’ competing vacatur and confirmation applications was not in dispute. 

Instead, the issue on appeal was whether the district court substantively erred in confirming 

the award, which involved employment claims based on federal law. This distinction is 

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8 

Finally, Ascension suggests that the All Writs Act, as well as the Relitigation Exception to the Anti-Injunction Act, provided the district court 

with subject matter jurisdiction over its vacatur application. However, “[t]he 

Anti-Injunction Act is not a jurisdictional statute, but goes only to the granting of a particular form of equitable relief.” In re Mooney Aircraft, Inc., 730 

F.2d 367, 372–73 (5th Cir. 1984) (citation omitted)). Similarly, “the All Writs 

Act does not confer jurisdiction on the federal courts.” Syngenta Crop Prot., 

Inc. v. Henson, 537 U.S. 28, 33 (2002). Thus, the district court was again correct to dismiss the application to vacate for want of jurisdiction. And, because 

the vacatur application did not establish an independent justification for subject matter jurisdiction, there was no error in the district court’s denial of 

Ascension’s request to enjoin the parallel state court proceeding under the 

All Writs Act. 

III. Conclusion 

Under Badgerow, when a party applies to a district court to confirm, 

modify, or vacate an arbitral award, it must establish on the face of the 

application a basis for subject matter jurisdiction separate and apart from the 

FAA. To accomplish this, it must be shown that (1) there is complete 

diversity among the parties and the amount in controversy exceeds $75,000, 

or (2) that “federal law . . . entitles the applicant to relief.” Badgerow, 596 

U.S. at 9. Here, Ascension seeks to relitigate issues underpinning an 

unfavorable arbitral award. Without an independent basis for subject matter 

jurisdiction, it cannot do so in federal court. 

AFFIRMED.9

_____________________ 

especially apparent when considering that our decision in Rodgers neither applied nor cited 

to the appropriate analysis established in Badgerow. 

9

 Pairprep’s motion to dismiss the appeal is thus DENIED AS MOOT. 

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