United States Court of Appeals

for the Fifth Circuit

No. 21-50905

Troy Hinkle, Individually and for others similarly 

situated, 

Plaintiff—Appellee,

versus

Phillips 66 Company, 

Defendant—Appellant,

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

Intervenor—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:20-CV-22

Before Richman, Chief Judge, and Costa and Ho, Circuit Judges.

Gregg Costa, Circuit Judge:

This appeal is the latest in efforts by Cypress Environmental 

Management to force its employees to arbitrate with Cypress’s clients. See,

e.g., Newman v. Plains All Am. Pipeline, L.P., 23 F.4th 393 (5th Cir. 2022)

(Newman I); Newman v. Plains All Am. Pipeline, L.P., 2022 WL 1114407 (5th 

United States Court of Appeals

Fifth Circuit

FILED

May 27, 2022

Lyle W. Cayce

Clerk

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Cir. Apr. 14, 2022) (unpublished) (per curiam) (Newman II). We have 

rejected its previous attempts and do so again.

I

Cypress is a pipeline-inspection company that hires inspectors and 

sends them to work for its clients. Troy Hinkle and his co-plaintiffs were 

some of those inspectors.1

 When Hinkle was hired, Cypress had him sign an 

Employment Agreement that contained an arbitration clause. That

arbitration provision read, in relevant part, as follows: “[Hinkle] and 

[Cypress] agree to arbitrate all claims that have arisen or will arise out of 

[Hinkle’s] employment.” Only Cypress and Hinkle signed the agreement,

and no other party was mentioned in the arbitration clause.

One of Cypress’s customers is Phillips 66. Though probably most 

well-known for its gas stations, Phillips 66 is a diversified energy company 

that stores and transports natural gas and crude oil. Phillips 66 needed some 

inspectors for its energy facilities, so Cypress staffed Hinkle on the project. 

Hinkle worked at Phillips 66’s facilities for the next few months. During that 

time, Hinkle was paid a day rate with no overtime.

Alleging that the Fair Labor Standards Act entitled him to overtime 

pay, Hinkle filed a collective action against Phillips 66 in the Western District 

of Texas. Hinkle sued only Phillips 66; he brought no claims against Cypress.

Cypress soon moved to intervene. The magistrate judge granted that 

motion, explaining that Cypress met the criteria for both permissive 

intervention and intervention as of right. See Fed. R. Civ. P. 24(a)(2), 

(b)(1)(B). The district court affirmed the magistrate judge on permissive 

intervention but did not reach intervention as of right.

Once Cypress was permitted to intervene, it moved to transfer the 

case to the Northern District of Oklahoma, citing the forum selection clause 

1 This opinion will collectively refer to the plaintiffs as “Hinkle.”

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in its arbitration agreement with Hinkle. Phillips 66 had already moved to 

transfer on the same basis. Cypress and Phillips 66 then both moved to 

compel arbitration. They argued that the delegation clause in Hinkle’s 

arbitration agreement required an arbitrator, not the court, to determine 

whether Hinkle’s claim against Phillips 66 was covered by the agreement. 

Phillips 66 further asserted that, even if arbitrability were a question for the 

court, it could enforce the arbitration agreement as a nonsignatory based on 

intertwined claims estoppel. Cypress alternatively claimed that it was an 

“aggrieved party” under Section 4 of the Federal Arbitration Act (FAA) and 

thus could compel arbitration.

The magistrate judge rejected all the motions. The district court 

affirmed. It held that whether the delegation clause applied to Phillips 66 was 

a question for the court. The court then answered that question, holding that 

Phillips 66 could not enforce the agreement based on intertwined claims 

estoppel because it did not have a close relationship with Cypress. The 

district court also held that Cypress was not an “aggrieved party” under 

Section 4 of the FAA because Hinkle did not break his agreement to arbitrate 

with Cypress by suing Phillips 66. Phillips 66 and Cypress both appealed.

II

While this appeal was pending, we decided cases involving other 

Cypress inspectors (collectively referred to as Newman) suing a different 

Cypress client (Plains). See Newman I, 23 F.4th at 393; Newman II, 2022 WL 

1114407, at *1. Newman I and Newman II largely control this case.

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Newman I holds that “deciding enforceability between the parties and 

an arbitration agreement’s existence are two sides of the same coin.” 23 

F.4th at 398. It is therefore up to us, not an arbitrator, to decide whether 

Phillips 66 can enforce the Hinkle-Cypress agreement. See id. at 399. We 

determine, for the same reasons as the Newman I court, that Phillips 66 as a 

nonsignatory cannot enforce the agreement. See id. at 405–06 (concluding 

that intertwined claims estoppel does not apply).2

Newman II extends Newman I’s reasoning to reject Cypress’s attempt 

to enforce the arbitration agreement in a suit where it has not been sued. 

2022 WL 1114407, at *1. Although Newman II is unpublished and thus 

nonbinding, we agree with it. Cypress attempts to repackage this as a new 

issue, but it is the same one resolved in Newman I—whether the arbitration 

agreement between Hinkle and Cypress was a promise by Hinkle to arbitrate 

its claims with Phillips 66. And that question depends on whether the 

agreement is enforceable between Hinkle and Phillips 66. That Cypress, the 

signatory to the agreement, is the one trying to compel arbitration makes no 

difference. The issue is not whether Hinkle has an arbitration agreement 

with anyone—it is whether he has an agreement to arbitrate with the party 

he is suing, Phillips 66. See 23 F.4th at 400 n.25 (“[J]ust because a signatory 

has agreed to arbitrate issues of arbitrability with another party does not mean 

that it must arbitrate with any non-signatory.” (alteration in original) 

(quoting Contec Corp. v. Remote Sol., Co., 398 F.3d 205, 209 (2d Cir. 2005))). 

Suing Phillips 66 rather than Cypress may pose obstacles for Hinkle, but an 

arbitration clause is not one of them.

2 Phillips also 66 argues that we should not apply Newman I because a petition for 

rehearing en banc is pending in that case. But Newman I remains good law. See 5th Cir. 

R. 41.3 (explaining that a panel opinion is vacated only after the granting of rehearing en 

banc); see Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 468 (5th Cir. 2013) (noting that 

vacating an opinion is what rids it of precedential value).

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Newman I and II do most of the work in this appeal. We nonetheless 

address a few points in more detail.

A

Phillips 66 argues that factual differences make Newman I

“inapposite.” The first “difference” it claims is not a difference at all. 

Phillips 66 argues that, unlike in Newman I, here there is an “agency 

relationship” and therefore Brittania-U Nigeria, Ltd. v. Chevron USA, Inc., 

866 F.3d 709 (5th Cir. 2017), applies. But the agency relationship it points to

between Phillips 66 and Hinkle is the same relationship that existed in 

Newman I between Plains and Newman. And that relationship is not the same 

as the one in Brittania-U, where the nonsignatory defendant was an agent of 

the signatory. See Newman I, 23 F.4th at 399–400.

B

Cypress argues that it is an aggrieved party under Section 4 of the 

FAA3 and therefore that the district court should have ordered arbitration.

Cypress claims it is an aggrieved party because Hinkle “br[ought] his 

employment-related disputes in” court on a collective basis and now Cypress

may be found jointly liable or be required to indemnify Phillips 66. But that 

is not what makes Cypress an aggrieved party: “It is only where the 

3 Section 4 of the FAA provides: 

A party aggrieved by the alleged failure, neglect, or refusal of another to 

arbitrate under a written agreement for arbitration may petition any United States 

district court which, save for such agreement, would have jurisdiction . . . of the 

subject matter of a suit arising out of the controversy between the parties, for an 

order directing that such arbitration proceed in the manner provided for in such

agreement. . . . The court shall hear the parties, and upon being satisfied that the 

making of the agreement for arbitration or the failure to comply therewith is not 

in issue, the court shall make an order directing the parties to proceed to 

arbitration in accordance with the terms of the agreement.

9 U.S.C. § 4.

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arbitration may not proceed under the provisions of the contract without a 

court order that the other party is really aggrieved.” Standard Magnesium 

Corp. v. Fuchs, 251 F.2d 455, 458 (10th Cir. 1957); see also Encompass Power 

Servs., Inc. v. Eng’g & Constr. Co., 2005 WL 3019740, at *2 (S.D. Tex. Nov. 

10, 2005), aff’d, 224 F. App’x 329 (5th Cir. 2007)(unpublished) (per curiam) 

(“ECCO has refused to arbitrate under that [arbitration agreement with 

EDG]. Consequently . . . EDG [qualifies] as a ‘party aggrieved’ for purposes 

of filing a § 4 motion to compel arbitration.”); Vainqueur Corp. v. Lamborn & 

Co., 305 F. Supp. 1007, 1008 (S.D.N.Y. 1969). As we have explained, Hinkle 

only promised to arbitrate claims brought against Cypress. Claiming that 

Hinkle did not arbitrate its claims with Phillips 66 is therefore not an 

allegation that he violated his agreement with Cypress. See Newman II, 2022

WL 1114407, at *1 (“Because Newman’s FLSA claims are against Plains, the 

Plaintiffs have not violated the arbitration agreement and Cypress is not an 

aggrieved party.”). Cypress is not an aggrieved party under Section 4 of the 

FAA and cannot compel arbitration. 

C 

Lastly, Cypress appeals from the district court’s denial of its motion 

to transfer venue. Although the FAA makes orders denying motions to 

compel arbitration immediately appealable, see 9 U.S.C. § 16, no statute 

allows interlocutory appeals of orders deciding motions to transfer venue, see 

In re Rolls Royce Corp., 775 F.3d 671, 676 (5th Cir. 2014) (“[T]ransfer orders 

do not fall within the scope of [the collateral order] doctrine.”); In re 

Volkswagen of Am., Inc., 545 F.3d 304, 309, 318–19 (5th Cir. 2008) (en banc) 

(holding that mandamus is available for challenging transfer motions because 

appeals are unavailable).

We recently noted this difference in our jurisdiction over appeals of 

arbitration rulings versus venue rulings. Noble Cap. Fund Mgmt., L.L.C. v. 

US Cap. Glob. Inv. Mgmt., L.L.C., 31 F.4th 333 (5th Cir. 2022). After 

recognizing that “no statute specifically grants appellate jurisdiction” for the 

appeal of a venue transfer ruling, we also declined to exercise pendent 

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appellate jurisdiction because doing so “is only proper in rare and unique 

circumstances where a final appealable order is ‘inextricably intertwined’ 

with an unappealable order.” Id. at *3 (quoting Thornton v. Gen. Motors 

Corp., 136 F.3d 450, 453 (5th Cir. 1998) (per curiam)). That standard was 

not met in Noble. The court did not need to “consider the motion to transfer 

venue in order to address the motion to compel arbitration” and the issues 

were “not so related as to where resolving them together would promote 

judicial economy.” Id.

The same is true here. We thus lack jurisdiction over the denial of the 

motion to transfer venue.

* * *

We DISMISS for lack of jurisdiction Cypress’s appeal of the denial

of its motion to transfer and AFFIRM on all other grounds.

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