[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12082

________________________

D.C. Docket No. 4:14-cv-0024-HLM

JOSHUA PARNELL, 

 Plaintiff - Appellee,

versus

CASHCALL, INC., 

 Defendant - Appellant,

WESTERN SKY FINANCIAL, LLC,

MARTIN A. (“BUTCH”) WEBB,

 Defendants.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(October 28, 2015)

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Before WILSON and MARTIN, Circuit Judges, and HODGES,

∗ District Judge.

WILSON, Circuit Judge:

This case requires us to determine whether a plaintiff properly challenges an 

arbitration agreement’s validity when he does not specifically challenge the 

delegation provision contained therein. The Supreme Court has explained that 

where 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. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 72, 130 S. 

Ct. 2772, 2779 (2010). Absent such a challenge, the Federal Arbitration Act

(FAA) requires that we treat a delegation provision as valid and permit the parties 

to proceed to arbitration. Id. at 71–72, 130 S. Ct. at 2779; see 9 U.S.C. § 2. We 

hold that when a plaintiff seeks to challenge an arbitration agreement containing a 

delegation provision, he or she must challenge the delegation provision directly. 

The district court erred in neglecting to recognize the delegation provision in 

the agreement in this case. Accordingly, we reverse and remand. 

I

Upon completing his service in the United States Army and experiencing 

less-than-ideal financial circumstances, Plaintiff-Appellee Joshua Parnell

 ∗ Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of 

Florida, sitting by designation.

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responded to a television advertisement for short-term loans. Parnell, situated in 

Georgia, logged onto his computer and applied for a loan from Western Sky

Financial, LLC (Western Sky), a South Dakota limited liability company with its 

principal place of business in Timber Lake, South Dakota. Just ten minutes after 

Parnell submitted his online loan application, a Western Sky employee called 

Parnell to inform him that he had been approved for a $1000 loan and relevant 

paperwork would be emailed to him shortly. The email Parnell received contained 

a document titled “Western Sky Consumer Loan Agreement” (Loan Agreement), 

which stated the terms of the contract between the parties. The Loan Agreement’s

Truth in Lending Act Disclosure Statement made plain the 232.99% annual 

percentage rate and finance charge of $3,905.56. In total, after making twenty-five

scheduled repayments on the $1,000 loan, Parnell would pay $4,905.56. 

Most importantly, the Loan Agreement contained an agreement to arbitrate 

any potential disputes between the parties. This provision stated in relevant part:

WAIVER OF JURY TRIAL AND ARBITRATION.

PLEASE READ THIS PROVISION OF THE AGREEMENT 

CAREFULLY. Unless you exercise your right to opt-out of 

arbitration in the manner described below, any dispute you have 

with Western Sky or anyone else under this loan agreement will 

be resolved by binding arbitration. Arbitration replaces the 

right to go to court, including the right to have a jury, to engage 

in discovery (except as may be provided in the arbitration 

rules), and to participate in a class action or similar proceeding. 

In Arbitration, a dispute is resolved by an arbitrator instead of a 

judge or jury. Arbitration procedures are simpler and more 

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limited than court procedures. Any Arbitration will be limited 

to the dispute between yourself and the holder of the Note and 

will not be part of a class-wide or consolidated arbitration 

proceeding. 

Agreement to Arbitrate. You agree that any Dispute, except as 

provided below, 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 and the terms of this Agreement.

Arbitration Defined. Arbitration is a means of having an 

independent third party resolve a Dispute. A “Dispute” is any

controversy or claim between you and Western Sky or the 

holder or servicer of the Note. The term Dispute is to be given 

its broadest possible meaning and includes, without limitation, 

all claims or demands (whether past, present, or future, 

including events that occurred prior to the opening of this 

Account), based on any legal or equitable theory (tort, contract, 

or otherwise), and regardless of the type of relief sought (i.e. 

money, injunctive relief, or declaratory relief). A Dispute 

includes, by way of example and without limitation, any claim 

based upon marketing or solicitations to obtain the loan and the 

handling or servicing of my account whether such Dispute is 

based on a tribal, federal or state constitution, statute, 

ordinance, regulation, or common law, and including any issue 

concerning the validity, enforceability, or scope of this loan or 

the Arbitration agreement. . . .

Parnell digitally signed the Loan Agreement and, seventy-two hours later,

Western Sky directly deposited $1,000 in Parnell’s bank account. Prior to the due 

date of his first repayment, Parnell received notification that Defendant-Appellant 

CashCall, Inc. (CashCall) had taken over his loan and he should make all his 

payments to CashCall, not Western Sky. 

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After sending his final payment to CashCall, Parnell filed suit in state court, 

alleging that CashCall and Western Sky’s business practices exploit tribal 

sovereign immunity and illicitly avoid federal and state regulations, including the 

Georgia Payday Lending Act, O.C.G.A. § 16-17-2. CashCall removed the case to 

federal court and moved to compel arbitration. The district court denied the

motion after determining that (i) Parnell articulated a challenge to the arbitration 

provision in the parties’ contract and (ii) the arbitration provision was 

unconscionable. CashCall now appeals.

II

We have jurisdiction under 9 U.S.C. § 16. “We review de novo the district 

court’s denial of a motion to compel arbitration.” Jenkins v. First Am. Cash 

Advance of Ga., LLC, 400 F.3d 868, 873 (11th Cir. 2005). 

III

The district court erred in holding that Parnell properly challenged the Loan 

Agreement. We hold that the Loan Agreement contains a delegation provision

and, though Parnell challenged the validity of the arbitration provision, he did not 

articulate a challenge to the delegation provision specifically. Therefore, the FAA 

requires that we treat the delegation provision as valid, enforce the terms of the 

Loan Agreement, and leave to the arbitrator the determination of whether the Loan 

Agreement’s arbitration provision is enforceable.

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A

The FAA places arbitration agreements on equal footing with all other 

contracts and sets forth a clear presumption—“a national policy”—in favor of 

arbitration. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S. 

Ct. 1204, 1207 (2006); accord AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 

___, 131 S. Ct. 1740, 1745 (2011); Rent-A-Center, 561 U.S. at 67, 130 S. Ct. at 

2776; Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1349 (11th Cir. 2014). The 

FAA governs the Loan Agreement because the parties conducted their business

across state lines. See 9 U.S.C. § 2. From the State of Georgia, Parnell used the 

Internet to contact and then contract with Western Sky and CashCall, which are 

South Dakota and California corporations, respectively. Neither party disputes that 

Western Sky and CashCall are engaged in interstate commerce. 

Section 2 of the FAA requires the courts to enforce an arbitration provision 

within a contract unless “such grounds exist at law or in equity for the revocation 

of any contract.” Arbitration provisions will be upheld as valid unless defeated by 

fraud, duress, unconscionability, or another “generally applicable contract 

defense.” Rent-A-Center, 561 U.S. at 67–68, 130 S. Ct. at 2776. Further, § 4 of 

the FAA permits one party to seek the assistance of the district court when the 

other party refuses to proceed with arbitration, and requires the court to “make an 

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order directing the parties to proceed to arbitration in accordance with the terms of 

the agreement.” 9 U.S.C. § 4. 

Importantly, parties may agree to commit even threshold determinations to 

an arbitrator, such as whether an arbitration agreement is enforceable. The 

Supreme Court has upheld these so-called “delegation provisions” as valid, RentA-Center, 561 U.S. at 68–70, 130 S. Ct. at 2777–78, and explained that they are

severable from the underlying agreement to arbitrate, Buckeye, 546 U.S. at 445, 

126 S. Ct. at 1209. When an arbitration agreement contains a delegation provision 

and the plaintiff raises a challenge to the contract as a whole, the federal courts 

may not review his claim because it has been committed to the power of the 

arbitrator. Instead, the plaintiff must “challenge[] the delegation provision

specifically.” Rent-A-Center, 561 U.S. at 72, 130 S. Ct. at 2779 (emphasis added). 

In sum, absent 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 Agreement as a whole for the 

arbitrator.” Id.

B

When federal courts interpret arbitration agreements, state contract law 

governs and directs the courts’ analyses of whether the parties committed an issue 

to arbitration. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. 

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Ct. 1920, 1924 (1995); Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054,

1061 (11th Cir. 1998); see also In re Checking Account Overdraft Lit., 685 F.3d 

1269, 1275 (11th Cir. 2012) (applying South Carolina law to interpret an 

arbitration agreement subject to the FAA). However, as the Supreme Court 

explained in First Options, “[c]ourts should not assume that the parties agreed to 

arbitrate arbitrability unless there is clear and unmistakable evidence that they did 

so.” 514 U.S. at 944, 115 S. Ct. at 1924 (internal quotation marks omitted).

Although the Loan Agreement expressly provides that the laws of the 

Cheyenne River Sioux Tribe (the Tribe) govern the agreement,1 the parties 

provided this court with no rule of tribal law regarding contract interpretation and 

our research uncovered none. We faced similar circumstances in Paladino, where 

we made an assumption regarding the proper choice of law based on one party’s 

place of employment because neither party addressed which state’s law applied 

and the relevant “principles of contract construction [were], in any event, matters 

 1 The Loan Agreement provides in relevant part:

GOVERNING LAW. This Agreement is governed by the Indian 

Commerce Clause of the Constitution of the United States of America and 

the laws of the Cheyenne River Sioux Tribe. We do not have a presence 

in South Dakota or any other states of the United States. Neither this 

Agreement nor Lender is subject to the laws of any state of the United 

States of America. By executing this Agreement, you hereby expressly 

agree that this Agreement is executed and performed solely within the 

exterior boundaries of the Cheyenne River Indian Reservation, a sovereign 

Native American Tribal Nation. You also expressly agree that this 

Agreement shall be subject to and construed in accordance only with the 

provisions of the laws of the Cheyenne River Sioux Tribe, and that no 

United States state or federal law applies to this Agreement.

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of hornbook law.” See 134 F.3d at 1061 n.1. Here, the plain-meaning rule is a 

foundational principle of common law contract interpretation widely adopted in the 

United States, including in Georgia, the forum that Western Sky specifically 

targeted with its television advertisement and in which Parnell viewed and signed

the Loan Agreement. Accordingly, we look to Georgia law for a statement of the 

plain-meaning rule and apply it in this case.

Under Georgia law, “[i]f the language of the contract is plain, unambiguous, 

and capable of only one reasonable interpretation, that interpretation must control, 

and no construction of the contract is required or even permissible.” See City of

Decatur v. DeKalb Cty., 713 S.E.2d 846, 849 (Ga. 2011). Applying this rule and 

remaining cognizant of the requirement that a contractual commitment to arbitrate 

arbitrability must be “clear and unmistakable,” we hold that the Loan Agreement’s 

plain language contains an express delegation provision. This provision conveys 

the parties’ intent to submit to an arbitrator the threshold issue of arbitrability. 

The delegation provision appears in the third sub-paragraph of the Loan 

Agreement’s arbitration provision. The portion of the Loan Agreement titled

“Arbitration Defined” commits all “Disputes” to arbitration and expressly states 

that a Dispute includes “any issue concerning the validity, enforceability, or scope 

of this loan or the Arbitration agreement.” Though contained within a subCase: 14-12082 Date Filed: 10/28/2015 Page: 9 of 13 
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provision, this language unambiguously commits to the arbitrator the power to 

determine the enforceability of the agreement to arbitrate. 

Parnell urges us to hold that no delegation provision exists because this 

language appears within a string citation of examples. However, there is no 

requirement that a delegation provision be offset from other contractual language

or solely discuss arbitration of arbitrability in order to be valid. Moreover, the 

Loan Agreement (i) requires that all Disputes be resolved in arbitration, with

Disputes construed broadly, and (ii) specifically defines Disputes to include at 

least “issue[s] concerning the validity, enforceability, or scope of this loan or the 

Arbitration agreement,” regardless of what other matters may also constitute a 

Dispute. Thus, the Loan Agreement contains a delegation provision, providing

clear and unmistakable evidence that the parties intended to commit the issue of 

arbitrability to the arbitrator. 

C

Because the Loan Agreement contains a delegation provision, we only retain 

jurisdiction to review a challenge to that particular provision. Absent a direct 

challenge, we must treat the delegation provision as valid and allow the arbitrator 

to determine the issue of arbitrability. Rent-A-Center, 561 U.S. at 72, 130 S. Ct. at 

2779. Parnell’s complaint only challenges the arbitration provision generally, and 

therefore falls short of the Rent-A-Center pleading requirement.

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In Rent-A-Center, Plaintiff Jackson brought a discrimination suit against his 

former employer, who responded with a motion to compel arbitration based on the 

signed employment agreement between the parties. In opposing the motion to 

compel arbitration, Jackson stated that “the entire agreement seems drawn to 

provide Rent-A-Center with undue advantages should an employment-related 

dispute arise” and that “the arbitration agreement as a whole is substantively 

unconscionable.” Id. at 73, 130 S. Ct. at 2779. The Supreme Court determined

that the arbitration agreement contained a delegation provision because it gave the 

arbitrator “exclusive authority to resolve any dispute relating to the . . . 

enforceability . . . of this Agreement,” id. at 71, 130 S. Ct. at 2779, and Jackson’s

opposition to the motion only challenged the arbitration agreement as a whole. 

Accordingly, the Court ignored Jackson’s arguments that the agreement was 

procedurally and substantively unconscionable because at no point did Jackson

make out a challenge to the delegation provision itself, id. at 72, 130 S. Ct. at 2779, 

and enforced the arbitration agreement as § 2 of the FAA required.

Parnell’s complaint largely parallels the shortcomings of Jackson’s 

opposition to the motion in Rent-A-Center. Parnell includes in the final paragraphs

of his complaint that the Loan Agreement contains an arbitration provision that 

violates substantive Georgia law. The cited Georgia law states that “[a]n 

arbitration clause in a payday loan contract shall not be enforceable if the contract

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is unconscionable” and lists a variety of factors the courts should consider when 

evaluating unconscionability under state law. O.C.G.A. § 16-17-2(c)(2) (emphasis 

added). Echoing the generalized allegations in Rent-A-Center, Parnell’s complaint 

further alleges that “[t]he Loan Agreement is unconscionable” because the interest 

rate is usurious; the designation of tribal law and jurisdiction is contrary to Georgia

law and public policy; the forum selection clause “is unconscionable as such a 

forum deprive[s] Plaintiff and the putative class of their day in court”; arbitration is

prohibitively expensive; and the Loan Agreement prohibits class actions. These 

allegations all address the validity of the underlying agreement and reflect the 

extent of Parnell’s challenge. At no point in his complaint does Parnell

specifically challenge the parties’ agreement to commit to arbitration the question 

of the enforceability of the arbitration agreement. Rather, he asks us to review the 

validity of the arbitration agreement as a whole, a task which the delegation 

provision expressly commits to an arbitrator. 

Our holding in this case does not, as Parnell suggests, require future 

plaintiffs to “file one challenge to an agreement as a whole, followed by a 

challenge to a certain clause, followed by challenges to single sentences, followed 

by challenges to words tacked onto conjunctions at the end of a sentence.” To the 

contrary, the result in this case merely follows the directive set forth in Rent-ACenter and emphasizes that when a would-be plaintiff seeks to challenge an 

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arbitration agreement containing a delegation provision, he or she must challenge 

the delegation provision directly. 

IV

We hold that the Loan Agreement between the parties contained a delegation 

provision and because Parnell did not directly challenge that provision, § 2 of the 

FAA requires us to treat it as valid and enforce the Loan Agreement according to 

its terms. Thus, we reverse the district court’s denial of CashCall’s motion to 

compel arbitration and remand for proceedings consistent with this opinion. As 

this case remains in its pre-trial stages, Parnell may still seek leave from the district 

court to amend his complaint to reflect a proper challenge to the delegation 

provision.2

 

REVERSED and REMANDED for proceedings consistent with this opinion.

 2 The record reflects that Parnell already once amended his complaint. However, before trial, 

the Federal Rules of Civil Procedure permit a party to amend his or her complaint with the 

court’s leave, which should be “freely give[n].” Fed. R. Civ. Pro. 15(a)(2). 

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