[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-13639

________________________

D.C. Docket No. 1:19-cv-01707-TCB

DONRICH YOUNG, 

 Plaintiff - Appellant,

 versus

GRAND CANYON UNIVERSITY, INC., 

GRAND CANYON EDUCATION, INC., 

d.b.a. Grand Canyon University, 

 Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(November 16, 2020)

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Before WILSON, NEWSOM and ANDERSON, Circuit Judges.

NEWSOM, Circuit Judge: 

This appeal involves a poorly written federal regulation. (No sense in 

beating around the bush.) One section of that regulation pretty clearly prohibits a 

college or university that accepts federal student-loan money from enforcing predispute arbitration agreements and class-action waivers when a student brings what 

the regulation calls a “borrower defense claim.” 34 C.F.R. § 685.300(e)–(f) 

(2016). The regulation goes on, though—and this is where the disagreement lies—

to define “borrower defense claim” to mean “a claim that is or could be asserted as 

a borrower defense as defined in § 685.222(a)(5), including a claim other than one 

based on § 685.222(c) or (d) that may be asserted under § 685.222(b) if reduced to 

judgment.” Id. § 685.300(i)(1). Boiled to its essence, the question here is whether 

the phrase “including a claim other than” means to include or exclude claims 

“based on § 685.222(c) or (d)”—which, respectively, refer to claims alleging 

breach of contract and substantial misrepresentation. 

The district court interpreted that phrase to exclude breach-of-contract and 

misrepresentation claims from § 685.300(i)(1)’s definition of “borrower defense 

claim.” Accordingly, the court ordered the borrower-plaintiff in this case to 

arbitration in accordance with an agreement that he had signed in conjunction with 

his application for admission to a for-profit university. Because we hold, to the 

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contrary, that § 685.300(i)(1) defines “borrower defense claim” to include breachof-contract and misrepresentation claims—and thus to shield those claims from 

mandatory arbitration—we will reverse.

I

A

Before diving into this case’s facts and procedural history, we’ll canvass the 

governing regulatory framework. The Federal Direct Student Loan Program 

permits college students to obtain loans directly from the federal government to 

finance their higher educations. See 20 U.S.C. § 1087a–1087h. Schools accepting 

federal student-loan money must enter into agreements with the Secretary of 

Education that include provisions that “the Secretary determines are necessary to 

protect the interests of the United States and to promote the purposes of [the 

program].” Id. § 1087d(a)(6); see also 34 C.F.R. § 685.300(b)(11).

As particularly relevant here, federal law directs the Secretary to “specify in 

regulations which acts or omissions of an institution of higher education a 

borrower may assert as a defense to repayment of a loan[.]” 20 U.S.C. § 1087e(h). 

At the program’s inception, the Secretary promulgated the first iteration of the 

“borrower defense rule.” See 34 C.F.R. § 685.206(c) (1995). That rule allowed a 

borrower to assert, as a defense to repayment of his loan, “any act or omission of 

the school attended by the student that would give rise to a cause of action against 

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the school under applicable State law.” Id. § 685.206(c)(1). The rule didn’t 

require the borrower to sue the school itself; he had only to assert the defense to 

the Secretary. See generally id. If he successfully did so, the Secretary would 

forgive the student-loan debt and then (in his discretion) sue the offending

institution for reimbursement of the forgiven amount. Id. § 685.206(c)(2)–(3).

Fast-forward to 2016 when President Obama’s Department of Education 

amended these regulations and codified the changes in 34 C.F.R. § 685.222 and 

§ 685.300. In the newly promulgated § 685.222, the Secretary of Education 

expanded the scope and types of available borrower defenses. Section 

685.222(a)(5) first provides a broad, general definition of “borrower defense[s]”: 

“[A] ‘borrower defense’ refers to an act or omission of the school attended by the 

student that relates to the making of a Direct Loan for enrollment at the school or 

the provision of educational services for which the loan was provided,” and can be 

invoked either as a “defense to repayment of amounts owed [but not yet paid] to 

the Secretary” or as a “right to recover amounts previously collected by the 

Secretary.” Id. § 685.222(a)(5).

Subsections (b), (c), and (d) of § 685.222 go on to specify three instances in 

which borrowers have borrower defenses. (There may be others; the regulations 

don’t, at least explicitly, purport to limit borrower defenses to those designated in 

subsections (b), (c), and (d).) Subsection (b) provides that a borrower has a 

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borrower defense if he “has obtained against the school a nondefault, favorable 

contested judgment based on State or Federal law in a court or administrative 

tribunal of competent jurisdiction.” Id. § 685.222(b). Subsection (c) states that a 

borrower has a borrower defense if his school “failed to perform its obligations 

under the terms of a contract with the student.” Id. § 685.222(c). And subsection 

(d) provides that a borrower has a borrower defense if the school or any of its 

representatives or affiliates “made a substantial misrepresentation . . . that the 

borrower reasonably relied on to the borrower’s detriment when the borrower 

decided to attend, or to continue attending, the school or decided to take out a 

Direct Loan.” Id. § 685.222(d). 

Taking stock—the Obama-era1 34 C.F.R. § 685.222(a)(5) provides a general 

definition of “borrower defense” as “refer[ring]” to “an act or omission of the 

school” that the borrower can then assert (to the Secretary) as a defense to 

repayment or as a basis to recover previously paid amounts. Subsections (b), (c), 

and (d) go on to specify at least three instances in which a borrower “has” a 

borrower defense—when he has obtained a favorable contested judgment against 

the school, when the school breached a contract with the student, or when the 

1 We say “Obama-era” because President Trump’s Department of Education amended the 

borrower-defense regulations in 2018. Those amendments, though, apply only to loans 

distributed on or after July 1, 2020, and are therefore inapplicable here. See 34 C.F.R. § 685.300 

(2020); see also 84 Fed. Reg. 49788, 49788 (Sep. 23, 2019). 

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school or one of its representatives or affiliates made a substantial 

misrepresentation. Id. § 685.222(b)–(d). 

Next—and importantly here, for reasons we will explain—the Obama-era 

§ 685.300 prohibited schools from entering into or relying on pre-dispute 

arbitration agreements and class-action waivers with students “with respect to any 

aspect of a borrower defense claim.” Id. § 685.300(e)–(f) (emphasis added). A 

school that had already included pre-dispute arbitration provisions or class-action 

waivers in agreements with students had to notify them that the school wouldn’t 

seek to enforce those terms. Id. § 685.300(f)(3)(i)–(ii). The same regulation goes 

on to define “borrower defense claim” as “a claim that is or could be asserted as a 

borrower defense as defined in § 685.222(a)(5), including a claim other than one 

based on § 685.222(c) [i.e., breach of contract] or (d) [i.e., substantial 

misrepresentation] that may be asserted under § 685.222(b) if reduced to 

judgment.” Id. § 685.300(i)(1). This case turns, pretty much entirely, on the 

meaning of § 685.300(i)(1)’s phrase “including a claim other than . . . .”

B

Now to the facts. Plaintiff Donrich Young was enrolled in a doctoral-degree 

program at defendant Grand Canyon University. He took out federal loans to pay 

for the program, and Grand Canyon made him sign a comprehensive arbitration 

agreement as part of his admissions application. In it, Young agreed that “that any 

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dispute arising from my enrollment, no matter how described, pleaded, or styled, 

shall be resolved by binding arbitration” and that “[b]oth I and the School 

irrevocably agree that any dispute between us shall be submitted to arbitration.” 

The provision further specified that any lawsuit filed in violation of the agreement 

“shall be dismissed by the court in favor of an arbitration conducted pursuant to 

this Agreement.” 

Young’s underlying complaint is this: Grand Canyon represents that 

students can complete a doctoral degree in 60 credit-hours. Young alleges, 

however, that Grand Canyon obfuscates how many hours it actually takes to 

complete a doctoral program and, in fact, has designed its program so that a 

student likely can’t finish in 60 hours. According to Young, Grand Canyon

requires students to take and pay for additional “research continuation courses,” 

and he contends that Grand Canyon’s assertion that students can complete a 

doctorate in 60 hours constitutes a material misrepresentation. Young didn’t 

complete his doctoral degree because he didn’t finish his dissertation on time, and, 

as a result, had to pay for three additional research-continuation courses. 

During Young’s time at Grand Canyon, the Obama-era borrower-defense 

regulations went into effect, and Grand Canyon notified him that it wouldn’t seek 

to enforce pre-dispute arbitration agreements and class-action waivers “if [Young] 

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assert[ed] a borrower defense claim, as that term is defined in 34 [C.F.R.]

§ 685.300(i)(1).” 

C

Young and seven others filed a class-action complaint against Grand Canyon

in federal court. They brought claims for breach of contract, intentional 

misrepresentation, violations of the Arizona Consumer Fraud Act, A.R.S. § 55-

1521 et seq. (which we’ll call the “statutory-fraud claim”), and unjust enrichment, 

as well as a request for a declaratory judgment. The district court dismissed the 

claims brought by all plaintiffs except Young on personal-jurisdiction grounds. 

Grand Canyon then moved to compel arbitration pursuant to the agreement 

that Young had signed as part of his application for admission. The district court 

granted the motion to compel, holding that Young’s breach-of-contract, 

misrepresentation, and statutory-fraud claims were not “borrower defense claims” 

as defined in § 685.300(i)(1) and so were not subject to the regulations’ prohibition

on pre-dispute arbitration agreements. In particular, the court held that the phrase 

“including a claim other than” in § 685.300(i)(1) operated to exclude breach-ofcontract claims (§ 685.222(c)) and misrepresentation claims (§ 685.222(d)). 

Construing the regulation to include breach-of-contract and misrepresentation 

claims, the court thought, would “render various provisions superfluous, including 

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the separate definitions for ‘borrower defense’ and ‘borrower defense claim’” in §§

685.222(a)(5)–(d) and 685.300(i)(1), respectively.

2

 

Young now appeals. Before us, the parties don’t dispute that Young’s 

claims all constitute either breach-of-contract or substantial-misrepresentation 

claims within the meaning of § 685.222(c) and (d). The only issue on appeal, then, 

is whether breach-of-contract and misrepresentation-based claims constitute

“borrower defense claims” as that phrase is defined in § 685.300(i)(1). If they do, 

then Young doesn’t have to arbitrate because 34 C.F.R. § 685.300(f) prohibits 

enforcement of pre-dispute arbitration agreements for borrower-defense claims. If 

they don’t, then the district court was correct to compel arbitration.3

II

A

In full—once again—§ 685.300(i)(1) states that a “borrower defense claim” 

is

a claim that is or could be asserted as a borrower defense as defined in 

§ 685.222(a)(5), including a claim other than one based on 

2 The district court also held that Young’s unjust-enrichment claim was subject to arbitration “for 

the same reasons as the breach-of-contract claim” and that the declaratory-judgment request 

failed because the court had decided to compel arbitration. The parties on appeal debate the 

district court’s order only as it relates to the core breach-of-contract, misrepresentation, and 

statutory-fraud claims. 

3 We review de novo an order granting a motion to dismiss a complaint and compel arbitration. 

Cruz v. Cingular Wireless, LLC, 648 F.3d 1205, 1210 (11th Cir. 2011). 

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§ 685.222(c) or (d) that may be asserted under § 685.222(b) if reduced 

to judgment[.] 

There’s no debate about the subsection’s first clause, which generally defines a 

“borrower defense claim” as “a claim that is or could be asserted as a borrower 

defense as defined in § 685.222(a)(5)”—which, in turn, generally defines 

“borrower defense” as “an act or omission of the school attended by the student 

that relates to the making of a Direct Loan for enrollment at the school or the 

provision of educational services for which the loan was provided.” Instead, this 

appeal turns on how we interpret the second, “including” clause—“including a 

claim other than one based on § 685.222(c) or (d) that may be asserted under

§ 685.222(b) if reduced to judgment.” 

Grand Canyon insists that, as used in § 685.300(i)(1), “including a claim

other than” is a phrase of exclusion, such that breach-of-contract (§ 685.222(c)) 

and substantial-misrepresentation (§ 685.222(d)) claims are never “borrower 

defense claims” within the meaning of § 685.300(i)(1). Young argues, by contrast,

that the phrase means (1) that breach-of-contract and substantial-misrepresentation 

claims are “borrower defense claims” even if they are not reduced to judgment in 

accordance with § 685.222(b) and (2) that non-breach-of-contract and nonmisrepresentation claims are borrower defense claims so long as they qualify under

§ 685.222(b). Without much analysis of the plain meaning of § 685.300(i)(1)’s

“including a claim other than” phrase, the district court adopted Grand Canyon’s 

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reading. We disagree and hold, as relevant here, that § 685.300(i)(1) includes—

rather than excludes—breach-of-contract and substantial-misrepresentation claims.

B

1

We construe regulations “in much the same way we interpret statutes,” so 

we start with the text—and, if we find it clear, we end there as well. Washington v. 

Comm’r of Soc. Sec., 906 F.3d 1353, 1362 (11th Cir. 2018). The question here is 

whether Young’s breach-of-contract and misrepresentation claims constitute 

“borrower defense claim[s]” within the meaning of § 685.300(i)(1). A plain-text 

reading of that regulation, we think, shows that “borrower defense claims” include 

both claims that “could be asserted as a borrower defense as defined in 

§ 685.222(a)(5)” as well as those “based on § 685.222(c)”—i.e., breach-of-contract 

claims—“or (d)”—i.e., misrepresentation claims. Let us explain. 

The introductory word of the key clause—we think tellingly—is 

“including.” As its name suggests, the term “including” introduces a participial 

phrase of inclusion, not one of exclusion. See Include, Black’s Law Dictionary 

(11th ed. 2019) (“The participle including typically indicates a partial list.”); see 

also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts 132 (2012) (“[T]he word include does not ordinarily introduce an exhaustive 

list . . . .”). The phrase “including a claim other than one based on § 685.222(c) or 

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(d) that may be asserted under § 685.222(b) if reduced to judgment” simply means 

that subsection (c) claims (i.e., those for breach of contract) and subsection (d) 

claims (i.e., those based on substantial misrepresentations) are included, as are 

non-contract and non-misrepresentation claims that could be asserted as borrower 

defenses under subsection (b) if reduced to judgment. While § 685.300(i)(1) isn’t 

particularly elegant, it isn’t fatally ambiguous, either. We think its meaning is 

clear enough. After all, if the regulation said “including claims other than those 

based on 685.222(c) or (d),” no one would think that it excluded subsection (c) and 

(d) claims. Why so, then, with the language here, which is functionally identical?

In support of its exclusionary reading, Grand Canyon posits the following

example: “If a person asks for ‘two scoops of ice cream, including any flavor 

other than chocolate or vanilla,’ it is clear that person is excluding chocolate or 

vanilla as options, not including them.” Br. of Appellee at 14. But even setting 

aside that it omits any sort of broad definitional clause like § 685.300(i)(1)’s 

reference to § 685.222(a)(5), Grand Canyon’s example subtly tweaks the language 

in a way that alters its meaning. In particular, it substitutes the word “any” for the 

word “a” before (in the example) the term “flavor.” Section 685.300(i)(1) says that 

a borrower-defense claim includes “a claim”—not “any claim”—“other than one 

based on” subsections (c) or (d). So, back to Grand Canyon’s example: If I ask for 

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two scoops of ice cream “including a flavor other than chocolate or vanilla,” I 

could very well mean that I want at least one scoop of chocolate or vanilla. 

In any event, two can play the analogy game, which can just as easily (we 

think more easily) undermine as support Grand Canyon’s skewed reading. 

Consider the following counterexample, which tracks the regulatory language 

more precisely than Grand Canyon’s: “A tort claim means a claim alleging 

culpable conduct resulting in personal injury, including a claim other than one 

based on negligent or reckless conduct.” Few, if any, would think that the phrase 

“including a claim other than” operates to exclude claims based on negligent or 

reckless conduct. Rather, this sentence plainly means that a tort claim includes 

claims in addition to those based on negligent or reckless conduct—say, those 

alleging intentional wrongdoing or those predicated on strict liability. 

Common sense confirms what § 685.300(i)(1)’s text clearly indicates. 

Grand Canyon would have us read the phrase “including a claim other than one 

based on § 685.222(c) or (d) that may be asserted under § 685.222(b) if reduced to 

judgment” to exclude at least two-thirds of the specified borrower defenses—and 

indeed, the ones most likely to underlie claims asserted by jilted borrowers, namely 

breach-of-contract and misrepresentation claims. Why would a regulation that all 

acknowledge was designed to protect student-loan borrowers exclude the most 

basic, heartland claims that they are likely to bring? See generally Cal. Ass’n of 

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Priv. Postsecondary Sch. v. DeVos, 436 F. Supp. 3d 333, 337–41 (D.D.C. 2020) 

(explaining the regulation’s aim to limit schools’ ability to enforce pre-dispute 

arbitration agreements and class-action waivers); see also 81 Fed. Reg. 39330, 

39331 (June 16, 2016) (similar). In short, it wouldn’t, and the regulation’s text

demonstrates that it didn’t.

2

Having interpreted § 685.300(i)(1)’s plain terms, we will briefly address 

Grand Canyon’s objection that Young’s (and hence our) reading renders 

“superfluous” the separate definitions of “borrower defense” in §685.222 and 

“borrower defense claim” in § 685.300(i)(1). Essentially, Grand Canyon’s

criticism is that if Congress wanted to make borrower-defense claims synonymous 

with borrower defenses it would have drafted § 685.300(i)(1)’s definition of 

“borrower defense claim” to track § 685.222’s definition of “borrower defense”

precisely. This criticism misses the mark for at least two reasons. 

First, even if there were no daylight between the operative definitions of 

“borrower defense” under § 685.222 and “borrower defense claim” under 

§ 685.300, that wouldn’t render either section “superfluous.” The two sections—

and their constituent definitions—address slightly different subjects and have 

slightly different fields of operation. True, borrower defenses under § 685.222 end 

up being the bases for borrower-defense claims under § 685.300, much like an act 

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of negligence ends up being the basis for a negligence claim. But § 685.222 

borrower defenses have a stand-alone role, as well—as defenses that (under the 

appropriate circumstances) a borrower can assert against the Secretary of 

Education to resist repayment of a student loan. Language in two separate sections 

of a regulation isn’t superfluous merely because it overlaps. Here, the two 

sections’ similarity—or even identity—might make one or both of them inelegant 

or clunky, but it wouldn’t render either of them superfluous.

Second, and in any event, there is no superfluousness issue, because under 

our reading § 685.300 is actually a wee bit broader than § 685.222, at least with 

respect to subsection (b)-type claims. Under § 685.222(b), a borrower has a 

borrower defense only if he has obtained a favorable judgment against the school; 

then—but only then—he can tell the Secretary that he doesn’t have to repay the 

loan. Under our reading of § 685.300(i)(1), a § 685.222(b) claim needn’t be 

reduced to judgment in order to qualify as a borrower-defense claim. Instead, the 

term “borrower defense claim” includes a claim that “may be” (i.e., could be) 

asserted as borrower defenses under § 685.222(b) if it were reduced to judgment. 

That is subtly, but meaningfully, different. In short, to have a borrower defense

under § 685.222(b), the borrower must obtain a contested judgment. By contrast, 

to have a borrower-defense claim under § 685.300(i)(1), the borrower needn’t have 

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a judgment; he need only have a claim that he could assert as a borrower defense 

under §685.222(b) if that claim had been reduced to judgment.

It’s worth noting, even if only parenthetically, that Grand Canyon’s reading 

of § 685.300(i)(1)—which seemingly would include (b)-type claims only if they

are “reduced to judgment”—would risk leaving some borrowers in a bizarre 

infinite loop from which they couldn’t escape. In order to resist mandatory 

arbitration, the borrower has to show that he has a borrower-defense claim. But 

(on Grand Canyon’s reading) in order to demonstrate a borrower-defense claim—

at least on a subsection (b)-type allegation—the borrower must show that he has 

successfully prosecuted the claim to judgment. But how can he obtain a favorable 

judgment if he is subject to mandatory arbitration? And so on and so on and so on.

* * *

Grand Canyon urges a reading of § 685.300 that would not only (1) exclude 

bread-and-butter breach-of-contract and misrepresentation claims—the claims that 

complaining borrowers are most likely to bring—but also (2) include non-contract 

and non-misrepresentation claims only if reduced to judgment, thereby rendering 

that aspect of the borrower-defense-claim protection meaningless. The language 

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doesn’t require—or even counsel—that strained reading, and we decline to adopt 

it.4

III

Let’s recap. We hold that § 685.300(i)(1) defines the term “borrower 

defense claim” to include—rather than exclude—breach-of-contract and 

misrepresentation claims—and, accordingly, that § 685.300(f) prohibits Grand 

Canyon from enforcing its pre-dispute arbitration agreement with respect to 

Young’s claims here. We reverse the district court’s decision to the contrary, 

4 For the first time at oral argument, Grand Canyon asserted a new argument—namely, that even 

if the borrower-defense regulations apply, reading them to invalidate an otherwise enforceable 

arbitration agreement would contravene the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Grand 

Canyon, however, has waived this argument, which it failed to present either to the district court 

or in its brief to us. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)

(“[A] party seeking to raise a claim or issue on appeal must plainly and prominently so 

indicate[.]”). Although an appellee may urge us to affirm on any basis supported by the record, 

see Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007), it still abandons any 

position that it “fail[s] to list or otherwise state it as an issue on appeal.” Hamilton v. Southland 

Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012); see also Sapuppo v. Allstate 

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“A party fails to adequately ‘brief’ a 

claim when he does not plainly and prominently raise it, for instance by devoting a discrete 

section of his argument to those claims.”) (emphasis added) (quotation omitted). 

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which granted Grand Canyon’s motion to compel arbitration, and remand for 

further proceedings. 

REVERSED and REMANDED. 

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