FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                    September 16, 2020

                                                                        Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                          Clerk of Court
                         _________________________________

 DANA FEDOR, and all others similarly
 situated,

       Plaintiff - Appellant,

 v.                                                         No. 19-2066

 UNITED HEALTHCARE, INC.; UNITED
 HEALTHCARE SERVICES, INC.,

       Defendants - Appellees.
                      _________________________________

                      Appeal from the United States District Court
                            for the District of New Mexico
                         (D.C. No. 1:17-CV-00013-MV-KBM)
                        _________________________________

Karla Gilbride, Public Justice, P.C. (Stephanie K. Glaberson, Public Justice, P.C.,
Washington, D.C., Jack Siegel, Siegel Law Group PLLC, Dallas, Texas, David Seligman,
Towards Justice, Denver, Colorado, and J. Derek Braziel, Lee & Braziel, L.L.P., Dallas,
Texas, with her on the briefs), Washington, D.C. for the Plaintiff-Appellant.
Robert F. Friedman, Littler Mendelson, P.C. (Mark Ogden and Cory G. Walker, Littler
Mendelson, P.C., Phoenix, Arizona, on the brief), Dallas, Texas, for Defendants-
Appellees.
                        _________________________________

Before BACHARACH, McHUGH, and EID, Circuit Judges.
                 _________________________________

EID, Circuit Judge.
                         _________________________________
       Plaintiff-Appellant Dana Fedor appeals the district court’s order compelling her to

arbitrate the employment-related claims she brought against her former employer,

UnitedHealthcare, Inc. (UHC), and United Healthcare Services, Inc. Fedor argues that

the district court impermissibly compelled arbitration before first finding that she and

UHC had indeed formed the arbitration agreement underlying the district court’s

decision. We agree and conclude that the issue of whether an arbitration agreement is

formed in the first instance must be determined by the court, even where there has been a

failure to specifically challenge provisions within the agreement delegating certain

decisions to an arbitrator. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate and

remand to the district court.

                                             I.

       Fedor worked as a care coordinator for UHC from November 2013 to

November 2016. In 2017, Fedor filed a collective suit in the District Court for the

District of New Mexico alleging that UHC violated the Fair Labor Standards Act

(FLSA) and New Mexico’s wage law (N.M. Stat. Ann. § 50-4-22(D)). Fedor filed

her initial complaint, eight other former employees joined her action.

       Defendant-Appellee UHC moved for the district court to dismiss Fedor’s suit

and compel her to arbitrate her case. UHC claimed that Fedor and the other class

members were each bound by a UHC policy requiring all employees to settle

employment-related claims through arbitration, not litigation.

       UHC demonstrated to the district court that each of the class members had

received and signed an arbitration policy when they commenced employment with

                                             2
UHC. Because the plaintiffs started work in different years (one started in 2009, one

in 2011, one in 2012, three in 2013, one in 2014, and two in 2015), and because UHC

periodically updated its arbitration policy (it updated the policy in 2006, 2012, 2015,

and 2016), not all of the plaintiffs signed the same arbitration policy.

      There are therefore four versions of the arbitration policy that are relevant to

this case—the 2006, 2012, 2015, and 2016 versions. The 2006, 2012, and 2015

versions are relevant because they were the versions seen and signed by at least one

of the plaintiffs. The 2016 version is relevant because it is the version UHC claimed

was active at the time it moved for the district court to dismiss Fedor’s suit and

compel arbitration.

      The 2016 policy differed from the three preceding polices in two important

ways. First, while the preceding policies included an “amendment clause,” the 2016

policy notably did not. This “amendment clause” in the earlier versions asserted that

UHC “reserve[d] the right to amend, modify, or terminate the Policy effective on

January 1 of any year after providing at least 30 days’ notice of its intent and the

substance of any amendment, modification or termination of the Policy.” Aplt. App.

at 63 (Ex. B, 2006 policy);

(Ex. H, 2012 policy);

(Ex. J, 2015

policy). The 2006, 2012, and 2015 versions also stated that “[n]otice may be effected

by the posting of the notice on the UnitedHealth Group intranet website” and that

“[a]ll arbitrations shall be conducted in accordance with the Policy in effect on the

date . . . the Demand for Arbitration” was received.

      The second aspect in which the 2016 policy differed from the three preceding

versions was that it contained a “delegation clause” establishing that an arbitrator—

instead of a court—would resolve disputes regarding the policy’s “interpretation,

enforceability, applicability, unconscionability, arbitrability or formation, or whether

the Policy or any portion of the Policy is void or voidable.”

None of the

three preceding versions contained such a delegation clause.

      In response to UHC’s motion to compel arbitration, Fedor argued that the

2009, 2012, and 2015 arbitration policies were void as illusory. She contended that

the amendment clause at the end of each policy gave UHC the unilateral ability to

amend or terminate the arbitration policy any time before an employee filed an

arbitration claim, and therefore UHC’s promise to arbitrate was illusory. She also

argued that the 2016 arbitration policy was “irrelevant” because none of the plaintiffs

saw or signed it.

      Though the district court agreed with Fedor and found the 2009, 2012, and

2015 policies were illusory, it nonetheless compelled arbitration based on the 2016

policy. In its decision, the court did not examine whether Fedor or the other

plaintiffs ever agreed to the 2016 policy. Instead, it simply noted that Fedor

challenged “only the validity of the contract as a whole,” and did not specifically

challenge the delegation clause within the 2016 policy.

The court cited

the Supreme Court’s opinion in Rent-A-Center, West, Inc. v. Jackson to assert that

“unless the party opposing arbitration ‘challenge[s] the delegation provision

specifically,’ as opposed to ‘challeng[ing] only the validity of the contract as a

                                            4
whole,’ this [c]ourt ‘must enforce it . . . leaving any challenge to the validity of the

Agreement as a whole for the arbitrator.’”

alterations in

original) (quoting 

, 72 (2010)).

       Fedor now appeals the district court’s judgment compelling her to arbitrate her

employment-related claims against UHC. She argues that—even for arbitration policies

containing delegation clauses—courts must first determine whether an agreement to

arbitrate was formed before sending the case to an arbitrator. In addition to opposing

Fedor’s challenge to the 2016 arbitration policy, UHC argues that we should affirm the

lower court’s arbitration order on the basis that the 2006, 2012, and 2015 policies were

valid, or on the basis that the plaintiffs implicitly agreed to arbitrate their employment-

related claims by commencing employment with UHC after reading the company’s

arbitration policy in their offer letters.

                                             II.

       Under de novo review,1 we find that the district court erred by compelling

arbitration based on Fedor’s failure to specifically challenge the arbitration clause

within the 2016 arbitration agreement which, according to Fedor, was never formed

between herself and UHC. It is true that a delegation clause can typically be

“severed” from an arbitration agreement and can thus prevent a court from deciding

certain arbitrability issues unless a litigant challenged the clause directly. However,

a delegation clause cannot be severed from an agreement that does not exist. Courts


       1
         We review orders granting a motion to compel arbitration de novo. Williams v.
Imhoff, 

, 762 (10th Cir. 2000).
                                              5
must therefore first determine whether an arbitration agreement was indeed formed

before enforcing a delegation clause therein.

                                           A.

      Section 2 of the Federal Arbitration Act established the “rule of severability,”

which means that an arbitration clause within a contract is “severable” from the

remainder of the contract. 

–71; Buckeye Check

Cashing, Inc. v. Cardegna, 

, 447 (2006). “Thus, a party’s challenge to

another provision of the contract, or to the contract as a whole, does not prevent a

court from enforcing a specific agreement to arbitrate.” 

. For example, “in an employment contract many elements of alleged

unconscionability applicable to the entire contract (outrageously low wages, for

example) would not affect the agreement to arbitrate alone.”

Similarly, a

“claim[] of fraud in the inducement of [a] contract generally” cannot by itself prevent

a federal court from enforcing an arbitration clause embedded therein. Prima Paint

Corp. v. Flood & Conklin Mfg. Co., 

, 404 (1967). For federal courts to

review such a claim, the claim must be directed at the “arbitration clause itself.”

      The rule of severability can also apply when an agreement to arbitrate is

codified not as a single clause within a contract, but rather in the form of a separate

arbitration contract altogether. See Rent-A-

. While courts

typically resolve “arbitrability” issues such as the validity, scope, or enforcement of

an arbitration contract, Granite Rock Co. v. International Brothers of Teamsters, 561

                                            

, 298 (2010), delegation clauses within arbitration contracts can commit the

determination of such issues to an arbitrator. 

–69.

These delegation clauses are severable and are thus considered separate from the rest

of the arbitration contract.

Therefore, if a party challenges the validity of

an arbitration contract as a whole but fails to specifically challenge a delegation

clause therein, then the delegation clause will typically require a court to compel

arbitration and allow an arbitrator to determine whether the arbitration contract was

indeed valid.

decision in Rent-A-Center illustrates how the rule of

severability applies to delegation clauses within an arbitration contract. In Rent-A-

Center, the Court reversed the Ninth Circuit’s judgment which held that a court could

decide whether the arbitration agreement between Jackson and Rent-A-Center was

unconscionable—even though the agreement contained a delegation clause giving an

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

. . . of [the] [a]greement.”

Rent-A-Center argued that because Jackson did

not challenge this delegation clause specifically but instead challenged the

“arbitration agreement as a whole,” the delegation clause should be enforced.

(emphasis added). The Court sided with Rent-A-Center and found that because

“Jackson [did not] challenge[] the delegation provision specifically, [the Court] must

treat it as valid.”

       But not all arbitrability issues can be delegated. The issue of whether an

arbitration agreement was formed between the parties must always be decided by a

                                             7
court, regardless of whether the alleged agreement contained a delegation clause or

whether one of the parties specifically challenged such a clause. See

n.1;

see also Granite 

. The Supreme Court in Rent-A-Center stated

that, though “parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’”

“[t]here is one caveat . . . [c]ourts should not assume that the parties agreed

to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they

did so,”

n.1 (alterations in original) (quoting First Options of Chicago, Inc.

v. Kaplan, 

, 944 (1995)). And while the Rent-A-Center Court held that a

litigant must specifically challenge the delegation clause in order to allow courts to

determine the validity of an arbitration contract as a whole, its holding does not apply

in situations where a party alleges that no agreement “was ever concluded” between

the parties.

n.2.

       Three days after Rent-A-Center was published, the Supreme Court reaffirmed

its position that issues concerning the formation of an arbitration contract cannot be

delegated to an arbitrator. In Granite Rock, the Court reversed the Ninth Circuit’s

judgment compelling the parties to arbitrate their claims even though the formation

of the underlying arbitration agreement was at 

–95, 313. And

while the arbitration agreement there did not include a delegation clause, the Court’s

“framework” for deciding the case shows that it would have found the dispute to be

un-arbitrable even if a delegation clause was present. See

       Under Granite Rock’s “proper framework for deciding when disputes are

arbitrable,” a court cannot order arbitration of a particular dispute unless it is

                                             8
“satisfied that the parties agreed to arbitrate that dispute.”

(emphasis in

original). The Court explained that while issues such as the “scope” and

“enforceability” of an arbitration clause can be committed to an arbitrator through a

“[delegation] provision,” courts must “always” resolve “whether the clause was

agreed to” by the parties.

, 299 (“[C]ourts should order arbitration of a

dispute only where the court is satisfied that neither the formation of the parties’

arbitration agreement nor (absent a valid provision specifically committing such

disputes to an arbitrator) its enforceability or applicability to the dispute is in issue.”)

(emphasis in original).

                                               B.

       Fedor’s challenge to the 2016 arbitration policy must be heard by a court

instead of an arbitrator. By claiming that neither she nor the other class members

read or accepted the 2016 arbitration agreement, Fedor raised2 an issue of formation


       2
         UHC claims that Fedor waived her challenge to the 2016 arbitration policy because
she “failed to (1) substantively raise the issue of formation before the District Court, or (2)
challenge the delegation clause at all.” Aple. Br. at 17. But we disagree.
       Fedor’s argument below—that neither she nor the other plaintiffs ever “signed, read
or even knew about” the 2016 arbitration agreement—was essentially one of formation.
Aplt. App. at 244. We therefore find that Fedor raised the issue of formation below and
thus preserved it for appeal.
       Fedor’s argument on appeal relating to the delegation clause was similarly preserved
below. As this court found in Tesone v. Empire Marketing Strategies, if the lower court
“passes upon” an issue by applying “the relevant law to the relevant facts,” then the issue is
not forfeited on appeal. 

, 992 (10th Cir. 2019). Here, the district court
discussed relevant law—Rent-A-Center—to explain that a party opposing arbitration must
specifically challenge the delegation clause (if it exists) within the relevant policy to enable
a court to resolve the dispute. Aplt. App. at 273 (Dismissal Order at 8) (citing Rent-A-

). The court then applied this law to the relevant facts when it
reasoned that, because Fedor did not specifically challenge the delegation clause within the
2016 policy, the court “[wa]s constrained to treat the delegation provision as valid and
                                               9
which—according to the Supreme Court in both Rent-A-Center and Granite Rock—

cannot be delegated to an arbitrator.

       It is of no matter that Fedor failed to specifically challenge the delegation

clause within the 2016 arbitration contract below. It is true that the Rent-A-Center

Court required the respondent to arbitrate his claims because he failed to specifically

challenge the delegation clause within the relevant arbitration 

. However, the respondent there indisputably entered into the arbitration

agreement at issue, and thus initially agreed to the delegation clause within the

policy.

       Fedor’s issue is quite different from the one in Rent-A-Center. She claims that

she never saw or agreed to any aspect of the 2016 arbitration policy. This is an issue

of formation that inherently calls into question whether she agreed to the delegation

clause within the policy. Denying her relief because of her failure to specifically

challenge the delegation clause would thus contradict the Supreme Court’s repeated

statement that courts may order arbitration only when “satisfied that the parties

agreed to arbitrate.” Granite 

.

                                            III.

       We reject UHC’s arguments to affirm on the alternate grounds that the prior

arbitration agreements were valid and that the plaintiffs implicitly agreed to arbitrate



enforce it.”

court applied the “relevant law to the relevant facts,” it
adequately “passe[d] upon” the delegation clause issue and preserved it for appeal. 

.

                                            10
any claims against UHC by commencing employment with the company. Because

affirmance on these grounds would enlarge UHC’s rights, UHC can raise them only

through cross-appeal. UHC did not do so, and we therefore decline review.

       While an appellee can generally seek affirmance on any ground found in the

record, it must file a cross-appeal if it seeks to enlarge its rights and gain “more than it

obtained by the lower-court judgment.” United States v. Madrid, 

, 1225

(10th Cir. 2011). A cross-appeal is thus required where resolution of an issue could

preclude future plaintiffs from bringing certain claims against the appellee. Housing

Authority of Kaw Tribe of Indians of Oklahoma v. City of Ponca City, 

,

1195 (10th Cir. 1991).

       For example, in Kaw Tribe, this court found that appellee Ponca City was required

to file a cross-appeal to raise its res judicata arguments—which were denied by the

district court below—because affirmance on res judicata grounds would preclude “other

potential plaintiffs . . . from bringing claims against Ponca City.”

the lower court’s dismissal of Kaw Tribe Housing Authority’s federal claims against the

City.

In the lower court, the City moved to dismiss on the grounds that the

Authority did not possess standing as a political subdivision, and also that res judicata

barred the Authority’s claims which “could have been asserted in response to the [C]ity’s

action in state court” during a previous suit.

granted the City’s

motion on the ground that the Authority lacked political subdivision standing, but

“expressly stated that res judicata was not a basis for its decision.”

(emphasis added). Nonetheless, the City refreshed its res judicata argument when

                                              11
defending against the Authority’s appeal, arguing for affirmance on that ground.

        However, we rejected Ponca City’s res judicata argument because the City did not

file a cross-appeal.

that a cross-appeal was not required to argue

res judicata because the argument was raised below and a finding in the City’s favor on

such ground would merely sustain the district court’s judgment.

finding that an affirmance based on the City’s res judicata argument would “enlarge the

rights conferred by the original judgment” by precluding future plaintiffs from bringing

claims against the City.

the district court’s order based on the 2006, 2012, and

2015 arbitration agreements would enlarge UHC’s rights by precluding future plaintiffs

from bringing FLSA claims against UHC in federal court. The district court found that

the 2006, 2012, and 2015 arbitration agreements were illusory. Therefore, under the

district court’s order, employees who left UHC prior to 2016 can currently bring

employment-related claims against UHC in federal court without having to adjudicate

such claims through arbitration.3 However, if we were to disagree with the district court

and find that the prior agreements were valid, then UHC could use its past agreements to

compel employees (who left the company before 2016) to arbitrate employment-related

claims rather than litigate them in court. Accordingly, as we found in Kaw Tribe,

affirming the district court’s order on the ground that the prior agreements were valid


        3
        We decline to review, and thus take no position on, the district court’s finding that
the 2006, 2012, and 2015 arbitration agreements were illusory.
                                             12
would “enlarge [UHC’s] rights conferred by the original judgment.”

And

because UHC did not file the required cross-appeal, we decline to review the district

court’s finding that the prior agreements were illusory.4

                                             IV.

       For the foregoing reasons, we VACATE the district court’s judgment compelling

arbitration and REMAND for the district court to determine if Fedor and UHC formed

the 2016 arbitration agreement.




       4
          The same holds true for UHC’s other argument, which is that the class members
implicitly promised to arbitrate any employment-related claims that arose between them and
UHC by beginning employment with UHC after reading the company’s arbitration policy in
their offer letters. If we were to affirm the district court’s order on this ground, we would
enable UHC to compel arbitration against other employees who also “implicitly” agreed to
arbitrate claims against the company. Resolving this argument thus has the potential to
preclude other employees from litigating their employment-related claims in federal court
and would accordingly require a cross-appeal. See Kaw 

.
                                             13