### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUI T September 25, 2003 THOMAS K. KAHN

CLERK [PUBL ISH] IN THE UNITED STATES COURT OF APPEALS FOR TH E ELEV ENTH C IRCUIT

________________________ No. 02-14448

________________________ D. C. Docket No. 02-00070-CV -C-W

JON AH P . AND ERS , and all oth ers similar ly situated, Plaintiff- Appe llant,

versus

HOM ETO WN MO RTG AGE SER VICE S, INC ., MO RTG AGE BRO KER S GR OUP OF T USC ALO OSA ,

Defen dants-A ppellees.

________________________ Appeal from the United States District Court for the Northe

rn Dist rict of Alaba ma

_________________________ (September 25, 2003) Before EDMOND SON, Chief Judge, CARNES, Circuit Judge,and CARNES*, District Judge.

_______________________ *Honorable Julie E. Carnes, United States District Judge for the Northern District of Georgia, sitting by designation.2

CARNE S, Circuit Judge: This is another arbitrat

ion dispute in which the parties are litigat

ing whether or not th ey shou ld be litigatin g. The f amiliar sce nario is th at the partie s agree in writing to arbitrate any disp utes betw een them , but then one par ty files a law suit taking the pos ition tha

t the agree

ment to arbit

rate is i napplicabl e, invalid, or unenforceable

for one reason or a

nother. Here t

he plainti ff contends t

he agreement to arbitr ate does not c over his feder al stat utory clai

ms, is unenforc eable becaus e he cannot afford to arbitrat e, and is invalid because i t does not afford him the remedial relief to w hich he is entitled un der the sta tutes. Based on the agree

ment, the di strict

court compell ed arbitra tion and dismissed the lawsuit. We conclude that the agreement is broad enough to cover the dispute , any problem i nvolving whether t

he plainti ff can afford t

he cost of arbitration is no p roblem in ligh t of the defend ant’s stipulation to p ay the plaintiff’s costs of arbitrat

ion, and because any impermissible re strictions on the re medies are

sev era ble fro m th e ot

her par ts t he agre eme nt i

tse lf i s no t inva li d. As

a re sul t, we affirm the di strict

court’s dec ision to se

nd the case t

o arbitrat ion where, if t

he plaintiff establishes his right to relief, the arbitrator will decide the remedies issues.1 Anders actually signed two documents pertinent to this appeal: The arbitration

agreement and a mortgage rider. The documents include mate rially identical remedial restrictions and severability clauses. For the sake of simplicity , we will generally refer to both of those documents as

the arbitration a

greement. 3

I. To finance the pur

chase of his home,

Anders borrowed funds from Hometown M ortgage Services in a transact ion brokered by Mortgage Brokers Grou p of Tu scaloosa . At the clo sing, A nders sig ned a nu mber o f docum ents includin g an arb itration ag reemen t. 1 The agreement specifically refers all disput

es between Hometown Mortgage and Anders to ar bitration. And it limi

ts the remedies available to Anders , stati ng that “t he arbitra

tor(s) may not

award punitive damages , tre

ble da mages,penal

ties , or at torne y’s f ees. ” Just

in cas e that

or some other pa rt of the ag reemen t does no t hold up , the agree ment inc ludes a se verability or savings cl ause specif ying that i f a court declares part of the agreement

invalid or unenforceable , the remai nder of the agre ement will not be affecte d. Anders sued both Mortgage Brokers and Ho metown Mortgage alleging that they viola ted the R eal Estate S ettlement P rocedu res Act ( RES PA) a nd the T ruth in Lending Act (TILA). Mortgage Brokers failed t o respond to the c omplaint, a nd the distric t court is sued a default

against i t. Hometown Mortgage, on the other hand, filed a motion to compel arbit ration based on the arbitrat ion agreement. In

res pons e, A nde rs a sse

rte d th at he co uld

not aff ord arb it rat ion , t o whi ch Ho metown4

Mortg age replie d with a stipulation that if the tria l court fo und A nders u nable to afford the costs associat ed with arbitration and found that hi s inability t o pay voided the agreement, Hometown Mortgage would bear the costs of arbitration that Ande rs otherw ise wou ld have h ad to pay

. Based on that stipulati on, the district court issue d an order compelling arbitr ation and dis

missing the c ase without prejudic e. Ande rs then b rough t this appe al. II. Ande rs presen ts three rea sons w hy he sh ould no t be force d to arbitr ate his claims ag ainst Ho metow n Mo rtgage: th e agreem ent to arb itrate does not reach his claims; t he agreement i s unenforceabl e because he ca nnot afford arbi

tration; and the agreement is invalid because of its remedial restrictions. Each of these contentio ns, throu gh wh ich An ders attem pts to avo id arbitratio n entirely, f alls within the category of “gate way matters” which the Supreme Court has instructed us that co urts and not arbitr ators sho uld decid e, Green Tree Financia l Corp. v. Bazzle , 539 U.S. __, __ 1 23 S. Ct. 2402, 240 7 (2003) (holding that cou rts must decide “ce rtain gatew ay matters , such as w hether th e parties h ave a valid arbitration agreement at all or whether a conceded ly binding arbitration clause applies to a certain typ e of con troversy ”); see also Howsam v. Dean W itter Reynolds, Inc. , 537 U .S. 79, 1 23 S. C t. 588, 59 2 (200 2) (“[A ] gatewa y dispute5

about whether the

parties a re bound by a given ar

bitration clause rai ses a ‘quest ion of arbitra bility’ for a c ourt to d ecide.”). Anders first c ontention i s that beca use the agree

ment to arbit

rate conta

ins remedial limitations, and because he is enti

tled to t he full remedies afforded by t he federal st atutes under

which his clai

ms arise, t

he agreement must

not reach the disputes involvin g his claim s. TILA and RESPA do provide for relief and remedies tha

t may be exclude d by the agreement , which does not per

mit the arbitrator to awar d punitiv e damag es, treble d amages , penalties, o r attorney ’s fees. For example, Anders al leges that

Hometown Mortgage paid referr al fees or kickba cks to Mortgage

Brokers , in violat

ion of Se ction 8 of RESPA, 12U.S.C. § 2607 (a), for w hich the s tatute pro vides treb le damag es, id. § 2607(d). Anders also all eges that Hometown Mortgage f ailed to di sclose cer

tain fina nce charges and understate d the annual per centage rat

e it charge d, all i

n violati on of TILA, 15 U.S.C . § 1638 , and Re gulation Z, 12 C .F.R. §§ 226.4, 2 26.18, a nd 226 .22. TILA entitles suc cessful p laintiffs to s tatutory d amages as well as any actua l damag es. 15 U.S.C. § 1640(a

). Ander s seek s att

orney’ s fees , which

both TILA a

nd RESPA allow prevail

ing plaint

iffs to re cover, TILA, 15 U.S.C. § 1640(a) (3); RESPA, 12 U.S.C. § 2607(d)(5).2 The quo tat ion is f rom the arbi tra tio n agr eem ent . Th e mo rtga ge ri der c ont ain s ma ter ial ly, although not literally, identical language. See note 1, above

. 6 Anders contends that because the arbitr ator cannot award the full relief that is permitt

ed by the sta

tutes, t he parties

must not have int

ended for the ar

bitration agreem ent to cov er these sta tutory claim s. The cle ar wor ds of the agreem ent, however, foreclose that position. It says: [A]ny action,

dispute, c laim, count

erclaim or c ontroversy (“ Dispute” or “Disputes”), between us, incl uding any claim based on or arising from an allege d to rt,

shall be reso lve d in

Bir min gha m, Al aba ma by ARBIT RATION as set forth below. The term “D isputes” shall include all actions, disputes, claims, c ounterclai

ms or controversies arisi ng in connecti on with the Loan, Note o r the Sec urity Instr ument, a ny collectio n of any indebted ness ow ed to Lender, any sec

urity or Collateral gi

ven to Lender, any

action ta ken (or any omissio n to take a ny action ) in conn ection w ith any ofthe abov e, any pas t, present a nd futu re agreem ent betw een or am ong us (includin g the Se curity Instrument),

and any past,present or fut ure transac

tions between or

among us. 2 The agreement could n ot have been broader. A ny disputes means all disputes, because “‘any’ means all .” Merrit v. Dillard Paper Co. , 120 F .3d 118 1, 1186 (11th Cir. 1997) (ci

ting United States v. Gonzales , 520 U.S. 1, 5, 117 S. Ct . 1032, 1035 (1997 )). And so, of co urse, do es the w ord “all” itse lf. The ag reemen t reaches th is dispute b ecause th e agreem ent reach es any an d all dispu tes. Having decided tha

t gateway is sue against

Anders, we turn to hi s next contention,

which is that

the agreement

should not be enfor

ced because he c annot afford th e costs ofarbitration

. It may be that an ag reemen t to arbitrate is7

unenforceable

if the cost

of arbitra

tion precl

udes the effe ctive vindication of statutory r ights in ar bitration. Green Tree Fin. Corp. v. Randolph , 531 U.S. 79, 90, 121 S. Ct. 513, 522 (2000). But “where, as here, a party seeks t o invalidate an arbitration agreem ent on th e groun d that arb itration w ould be prohib itively expensive, that party

bears the burden of showing the likelihood of incurring such costs.” Id. at 92, 121 S. Ct. at 522. Anders submit ted an affi davit in which he said: “I simply cannot afford to pay t he $3,500.00 to $6,000.00 that I have determined will be re quired to arbitrate m y claims,” a nd in tha t affidavit h e substan tiated his inability t

o do so by detailing his asset s, debts, income, and expenses; he e ven attached a copy ofhis credit r eport. That is not enough, in view of the circums tances. The agreement provi des that ar bitration will be in ac cordance with t he Amer ican Ar bitration A ssociation Rules fo r Com mercial F inancial D isputes. Those rules spec ify that “the AAA may, in the eve nt of extreme ha

rdship on the part of any par

ty, defer or reduce the a

dministrat

ive fees. ” AAA Rules for Comm ercial Fin ancial D isputes, R ule 46. They also provide that all ot her expenses of the arbitrati on, including travel,costs of witnesses, and fees of t he arbitrator, while ordinari

ly “borne equa

lly by the parties” may be assesse d by the arbit rator against an y specified party. Id. Rule 47. We need not decide if those pr ovisions of3 Counsel for Hometown Mortgage did say at oral arg ument that her client’s stipulation does not cover Anders’ attorney’s fees, but that is not what the Green Tree issue which we are discussing is about.

4 Our decision of this issue is consistent with our recent decision in Musnick v. King Motor Co. of Ft. L

auderdale , 325 F.3d 1255 (11th Cir. 2003), where we rejected the plaintiff’s contention that a “loser-pays” attorney ’s fees provision invalidated an agreement to arbitrate. Id. 8 the AAA rules alone are enough to preclude

a finding tha

t arbitr ation would be prohibitively expensive f or Anders, because there is more. The m ore is that H ometow n Mo rtgage stip ulated in th e district co urt that if Anders was unable to pay for arbitr

ation and his

inabili ty would preclude arbitration, Hometown Mortgage “would agree to bear the administrat ive fees which Anders would otherwise be required to pay in the institution of an arbitration act

ion.” At oral argument before us, Hometown Mortgage’s counsel said the stip ulation m eans her client will p ay “wha t we nee d to pay to make it fa ir for Mr. Anders,” and t

he arbitra

tor will dec ide how much Hometown Mortgage should pay of And ers’ costs. Cou nsel agreed tha t Hometo wn M ortgage’s stipulation should be cons trued ex pansive ly, and w e interpre t her repr esentation s to us to me an that no declaratio n of inv alidity beca use of p rohibitiv e costs is necessary before her client will help with A nders’ costs. 3 Give n Hometown Mortg age’s w illingness to bear th e costs ofarbitration that An ders is un able to afford (as the arbitrat

or determines), it f

ollows that Anders has not demonstrated that arbit rati on would be

prohib iti vely e xpensi ve for h im. 4at 1261-62 . Applying Green Tree , we concluded tha t because the pla

intiff might prev

ail in arbitration and in

cur no attorney

’s fees, he had n

ot met his burden of

showing prohibiti

ve costs of arbitration. In Musnick , as in this case, the Green Treeissue determined the enforceability of the agreement to arbitrate and was therefore a gate way issue to be decided by the c ourt and not the arbitrator. 9 Anders’ final contention is t hat the arbitrat

ion agreement cannot be enforced since it contai

ns provisions that are inval id because they cut down remedies otherwise available to hi m under the federal statutes upon which his claims are based. This cont

ention implicates gener

al princi ples of arbi

tration law, such as the Federa l Arbitra tion Ac t’s prono uncem ent that w ritten arbitr ation agr eements “shall be valid, ir revocab le, and en forceab le, save up on such groun ds as exis t at law or in equity for the revocati on of any contract.” 9 U.S.C. § 2. The Supreme Court has interpreted that

statutory pronouncement as “a congressional declaration of a liberal federal

policy favoring arbitrat ion agreements.” Moses H . Cone M em’l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24, 103 S. Ct. 927, 941 (1983). That is entir ely underst

andable sinc e the FAA was enacted “‘ to reverse t he longstandi

ng judicial ho stility to arbitr ation agr eements . . . and to p lace arbitra tion agre ements upon the same footing as other contracts. ’” EEOC v. W affle House, Inc. , 534 U.S. 279, 289, 122 S. Ct. 754, 761 (2002) (quoting Gilmer v. Inte rstate/ Johnson Lane Corp. , 500 U .S. 20, 2 4, 111 S . Ct. 164 7, 1651 (1991 )).10

Agree ments to arbitrate ar e akin to f orum- selection c lauses. Cunningham v. Fleetwood Homes of Ga., Inc. , 253 F.3d 611, 617 (11th Ci r. 2001) (cit

ing Scherk v. Alberto-Culve

r Co. , 417 U .S. 506 , 519, 94 S. Ct. 24 49, 245 7 (197 4)). A p arty agreeing to arbitrate statutory c laims “do es not fo rgo the s ubstantiv e rights afforded by the statute; it only submits to thei r resolution in an arbit

ral, rather than a judicial, f

orum.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc. , 473 U.S. 6 14, 628 , 105 S . Ct. 334 6, 3354 (1985 ). Feder al statutory claims are as a rule arbitrable , see Gilmer , 500 U. S. at 28, 11 1 S. Ct . at

1653, and claimsunder TILA and RE SPA are no ex ception, see Bowen v. First Family Fin. Servs. Inc. , 233 F.3d 1331, 1338 (11th Cir. 2000) (concluding t hat nothing i

n the text or

legisla tive history of TILA establishes that pl aintiffs have a non-waivable right to pursue an individu al lawsu it as disting uished from pu rsuing a rbitration ); Blount v. N at’l Lending Corp. , 108 F. Supp. 2d 6 66, 669 ( S.D. Miss . 2000)(holdi ng that RESPA claims are

arbitrable). The parti es in this case do not dis agree about TILA and RESPA claims being arbitrabl e but about whether the arbitration agreement they signed is i

nvalid on the gr

ound that it

contains provi sions which would defea t the remedia l purpo ses of R ESP A and TILA

.5 Anders’ additional reliance upon Perez v. Globe Airp ort Sec. Servs. , 253 F.3d 1280 (11th Cir. 2001), is misplaced, because we have vacated our decision in that case, 294 F.3d 1275 (11th Cir. 2002), and a vacated decision has no effect whatsoever, United States v. Sigma Int’l , 300 F.3d 1278, 1280 (11th Cir. 2002). 11 Anders relies

upon Paladino v. Avnet Computer Techs., Inc. , 134 F.3d 1054 (11th Cir. 1998). 5 That decision involved an employer’s ap peal of a district cou rt’s denial ofits motion to comp el arbitratio n in an em ployme nt discrim ination ac tion. The agreement in t

hat case re ferred to ar

bitration all employment disputes,but specifie d that “[t

]he arbit rator is a uthorized t

o award damages for brea ch of contract only, and shall

have no authority whatsoever to make an award of other damages.” Id. at 1 060. Bec aus e Titl e VII dama ges are not con tra ct d ama ges , we concluded that

the arbit ration cl ause denied t

he employee “t

he possibility of meaningful relief in an arbi tration proceeding.” Id. at 1062. The arbitration clause was invalid,we said, becaus e “the arbi trabili ty of [sta tutory] c laims rest

s on the assumption that the arbit ration clause permits

relief equivalent

to court remedies.” Id. (citing Gilmer , 500 U .S. at 28, 1 11 S. C t. at 1653 ). The ar bitration c lause in Paladino did not d o that, so w e prono unced it in valid. W ith no va lid agreem ent to arbitrate, th e parties w ere left to fig ht it out in c ourt. Other c ircuits hav e handle d issues in volving remedy restriction provisio ns in arbitrat ion agreements

different ly than we did i

n Paladino . They let t

he arbitra

tor decide in the first ins tance w hether re medial lim itations are permiss ible. See, e.g. ,12

Hawkins v. Aid Association For Lutherans , 338 F.3d 801, 807 (7th Cir. 2003) (“Becau se the ade quacy o f arbitratio n remed ies has no thing to d o with whether the parties agreed to arbi trate or if the cl

aims are within the scope of that agreem ent, these c hallenge s must fir st be con sidered b y the arbitr ator.”); Bob Schultz Motors, I

nc. v. Kawasaki Motors Corp. , 334 F.3d 721, 726 (8th Ci r. 2003) (“[T]he part

y seeking to void the provisi ons [in an arbi tration a greement] waivi

ng punitive damage s and other rel ief ha[s] to address t

hose arguments t

o the arbitrator .”); Larry’s United Super, Inc. v. Werries , 253 F.3d 1083, 1086 (8th Cir. 2001 ) (d eclini

ng to fo ll ow Paladino , and stating “[w]hether f ederal public policy prohibits an individual fr om waiving certain statutory remedie s is an issue that may be raised when challeng ing an ar bitrator’s a ward” ); MCI Telecomms. Corp. v. Matrix Comms. Corp. , 135 F.3d 27, 33 n.12 (1st Cir. 1998) (holding that an argum ent that an arbitration agreem ent is inva lid becau se it foreclo ses certain remedies othe

rwise avail able “must be brought to the a

rbitrat or because it

does not go to the arbitrability of the clai ms but only to the nature of avail able relief”); Great Western Mortgage Corp. v. Peacock , 110 F.3d 222, 232 (3d Cir. 1997) (“The availabilit

y of punitive damages is not rele vant to the nature of the forum in which the complaint will be heard. Thus, availability of punit ive damages cannot enter into a dec ision to co mpel arb itration.”). But see Ingle v. Circuit City Store s, Inc. , 328 F.3d 1165, 1179 (9th Cir. 2003) (affirming the denial of a motion to compel13

arbitrat ion and stat

ing that: “[b]ecaus e the remedie s limita tion [in t he arbitra

tion agreem ent] impr operly p roscribe s available statutory r emedies , . . . it is substantively unconscionable ”). The dif ference b etween those de cisions o f the Firs t, Third, S eventh, and Eighth Circuits and our Paladino decision i s that in t hose circui

ts an agreement containing a provision that i mpermissibly precludes or li mits statutori ly authorized remedie s is still a valid agreem ent purs uant to w hich the c ase is to be sent to arbitrat ion, where the a

rbitrat or decides t

he remedies i ssues along wit h all the others. Under Paladino , it is not an issue f

or the arbit

rator, at least not under the facts and ci

rcumstances of

that deci sion. Of cou rse we h ave no n eed to de cide wh ether, in th e circum stances it involve d, Paladino is the better approa ch; that de cision is th e law ofthis Circu it regardle ss of ou r view o f it. See Smith v. GTE Corp. , 236 F.3d 1292, 1301-02 (11th C ir. 2001 ); United States v. S teele , 147 F.3d 1316, 1317-18 (11t h Cir. 1998) (en banc). However, while we must apply the Paladino decision t o facts and circumstanc es sufficiently si milar to t hose under which it

arose, we are not obligated to extend the decisio n to diffe rent situatio ns. See Watts v . BellSo uth Telecomms., Inc. , 316 F.3d 1203, 1207 (11th Ci r. 2003) (“[J

]udicial decisions cannot make law beyond the facts of the cases i n which those decisions are announced.”). The prior panel pr ecedent rul e obligate s us to foll ow the holdings of6 The opinions in Paladino are presented in a confusing way. Chief Judge Ha tchett’s opinion is presented first, but no other member of the panel joined it, 134 F.3d at 1055. The opinion of the Court is that of Judge Cox, joined as it was by Judge Tjoflat, id . at 1060; cf. McMahan v. Toto , 311 F.3d 1077, 1080 (11th Cir. 2002) (“Two is a majority of three, and a majority of participating judges controls a court’s decision.”). 14 an earlier d ecision, United States v. S mith , 122 F.3d 1355, 1359 (11th Ci r. 1997) (per curiam),

but “[t] he holdings of a pr ior decision can reach only as far as t

he facts and circumstances prese nted to the court in the cas e which produced that decision,” United States v. Aguillard , 217 F.3d 1319, 1321 (11th Cir. 2000) (per curiam) (citation an d interna l marks o mitted). This case is

diffe rent f rom Paladino in a way that leads us to conclude t hat even if the remedial rest rictions within the ar

bitration agreement i

n this case are invalid,as Anders argues, the parti es must sti ll arbit rate. Neces sarily i

mplicit i n the Paladino decision i s the proposit ion that t he invalid r

emedial restrictions were not severable from the remainder of the arbi tration agreement in t

hat case. Otherwise, this Court would not

have struck down the e ntire agre ement as it

did in affi

rming the district’s court’s re fusal to o rder arb itration. Nothing in the Paladino decision indicates that

there was a severabilit

y provision in that agreement t o arbitrate; severab ility is not ev en men tioned in the opin ion of th e Cour t. 6 By con trast, the arb itration ag reemen t in this case contains a severab ility provision tha

t evidences

the parti es’ inte

ntion to enfor

ce the remai

nder of the7 The arbitration a greement in this

case states: If for any reason a c

ourt of competent jurisdiction should declare all or any part of this Agreement i

nvalid or unenfor

ceable, then the

remainder of this

Agreement, or the application of such provision or provisions to persons, entities or circumstances other than those as to whom or which it is held invalid or unenforceable

, shall not be affe

cted thereby

, and every

provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law . . . . The mortgage rider contains a materially, thoug h not literally, identical provision. 15 agreement in t

he event any port

ion of it i s deemed invalid. 7 If the sev erability provision is

given effect

, it means t

hat in thi s case, unlike in Paladino , the remainder of the arbitrat ion agreement survives any invalidi ty of its remedial restric tions. Whether

the severability provi sion is to be given effect

is a question of state law, b ecause in placing a rbitration agreem ents on a n even f ooting w ith all other co ntracts, the FAA makes g eneral state contract la w con trolling. See Paladino , 134 F.3d at 1061. That means in this

case that the effect

given the severability cla

use – if the pr

ovisions res

tricti ng remedies are

invalid – i s to be decided under th e law ofAlabam a, which is the state law applicab le to this agreem ent. Alabam a law fav ors seve rability, and it gives fu ll force an d effect to severability c lauses. Two recent decisions of the Supreme Court of Alabama – which happen to be in a rbitrat ion cases – i llustra

te. In Ex Pa rte Thick lin , 824 So. 2d 723 (Ala. 200 2), the Court concluded that a prov ision in an arbitration clause16

prohib iting pun itive dam ages w as invalid , but seve red it out, s ending the case to arbitration

. Id. at 735. Then in Ex parte Celtic Life Ins. Co. , 834 So. 2d 766 (Ala. 2002), the Court explained that there is a “general ‘duty of the co urt to preserve so much of a contract as may properly sur vive its invalid and ineffective prov isions’” and enforced the

arbitrat ion agreement mi

nus the invalid provision e xcluding punitive damag es. Id. at 769 (q uoting 1 7A C .J.S. Contra cts § 297 (1999)). Like t he agreement in t

his case,the agreements in Thicklin and Celtic Life included severab ility clauses. Celtic Life , 834 S o. 2d at 7 68, Thicklin , 824 So. 2d at 734. In view of the cle ar and sett led Alabama law favor

ing severabi lity,as well as t he FAA’s requirement that arbitration agree ments be treated no less favorabl y than other contracts under stat e law, the severabili

ty clause in thi s case should be applied to preve nt any inv alid prov isions fro m destro ying the e ntire agre ement to arbitrate. The decision i

n Paladino , in which the i nvalid portion of the arbit ration agreement was not s evered, is distingui shable. 134 F.3d a t 1062. As we have mentioned, t

he opinion in Paladino says nothing a bout a severability clause and there may not ha

ve been one. Also,the agreement in Paladino , a Florida case, was not to be constru ed and a pplied in light of A labama la w, id. at 1061 n.1, which favors s everability . Wheth er we co rrectly app lied the ap plicable sta te law in Paladino , we hav e an oblig ation to ap ply Alab ama law correctly in this case.17

The severability dete

rmination dec ides the ar bitration question. Bec ause any invalid provisions are severa ble, the underlying cl aims are to be arbitrat ed regardless of the validity of the remedial restrictions. With or without those provisions, the case goes t o arbitration. Whether the agree ment is valid as writte

n or suffers i

nvalid provis ions that must be removed under the f orgiving eye of

the

severan ce clause, th ere is a valid agreem ent to arb itrate in plac e. Since th e case is go ing to arb itration, an arbitrator and no t a court sh ould decide the validit

y of the remedial restri

ction provisions, because “ [a] court compelling ar

bitration should decide onl y such issues

as are esse

ntial t o defining the nature of the forum in which a dispute will be decided.” Musnick v. King Moto r Co. ofFt. Lau derdale , 325 F.3d 1255, 1261 (11th Ci r. 2003) (quotat

ion marks a nd citation omitted) . Our d ecision in this respe ct aligns u s with th e majority of circuit s that have a

nswered this ques

tion. See, e.g. , Bob Schultz Motors, Inc . v. Kawasaki Motors Corp. , 334 F.3d 721, 726 (8th Cir. 2003); MCI Telecomms. Corp. v. Matrix Comms. Corp. , 135 F .3d 27, 3 3 n.12 ( 1st Cir. 1 998); Great Western Mortgage Corp. v. Peacock , 110 F.3d 222, 232 (3d Cir. 1997). We realize t

hat the Supreme Court

of Alabama in Thicklin and Celtic Life did decide the validit

y of the challenged remedial re strictions i n those cases before

sen ding th e di spu

tes to a rbi tra ti on. If i t we re a mat ter of g ene ral

con tra ct law, we would follow the Thicklin and Celtic Life approach here, because Alabama law8 We have no occasion at this time to decide the extent to which that decision of the

arbitrator abou

t the validity

of the remedial p

rovisions will be re

viewable in cour

t. 18 applies to the general contract questions in this case. How ever, unlike severability, whether a court or

arbitrat or is to decide particular issues i s not a question of contract law, but is ins

tead governed by t

he FAA; it is a fede

ral law iss

ue to be decided under t

he “body of feder

al substant

ive law of arbi

trabili ty, applicable to any arbitration agreement withi n the coverage of the [FAA],” Moses H. Cone , 460 U.S. at 24, 10 3 S. Ct. a t 941. State and federal courts are free to decide federal law issues for t

hemselves (unl ess and until the United Stat

es Supreme Court set

tles the matter). We have done so, concludi ng that the a

rbitrat or should decide

whether the remedial provisions of the arbit ration agreement are invali d, if the arbitr

ator decides that An ders’ claim s have m erit. 8 III. We have decided all

the gateway i ssues: whether the arbit ration agre ement covers this dispute; whether i t is unenforceable because prohibi tively expensive; and whether any invalid provisions are severabl e. Our decision of those issues compe ls the con clusion th at arbitratio n is the pr oper fo rum fo r settling th e dispute between these pa

rties. Having decided the issues “e ssential

to defining t

he nature of the forum in which a dispute will be decided,” Musnick , 325 F.3d at 1261 (quotatio n mark s and citatio n omitted ), we sh ould no t and w ill not decid e any mo re. The dis trict court p roperly c ompelle d arbitratio n.19

AFFIR MED.