               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-41384



     BARBARA STRAWN,

                                          Plaintiff-Appellee,

                              versus

     AFC ENTERPRISES INC.,
     doing business as Churchs Chicken,

                                          Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                           G-99-CV-241
                       - - - - - - - - - -
                        November 29, 2000

Before REAVLEY, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:*

     The instant appeal is from the denial of a motion to compel

arbitration.   Concluding that the district court erred in reaching

the issue of arbitrability, we vacate the district court’s order

and remand with instructions to refer the case to arbitration and

stay the proceedings pending arbitration.

I.   FACTUAL AND PROCEDURAL HISTORY

     This diversity case arose when plaintiff Barbara Strawn was

injured in a slip and fall accident within the course and scope of

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
her employment at defendant AFC’s Churchs Chicken Restaurant (AFC)

in Alvin, Texas.     AFC is a non-subscriber to the Texas Workers’

Compensation Act (TWCA).       Instead, AFC provides its employees

defined injury benefits on a no-fault basis in exchange for their

agreement to arbitrate any work-related dispute.       Signing that

agreement was a “condition precedent” for Strawn’s employment with

AFC, which began in 1997.    The agreement does not waive or limit

the causes of action, remedies, or damages that may be pursued in

the arbitration proceeding. Additionally, AFC, as an employer that

does not subscribe to the TWCA, cannot assert the defenses of

contributory negligence, assumption of risk, or negligence of a

fellow employee when an employee attempts to recover damages for

personal injuries or death.1    See Cupit v. Walts, 90 F.3d 107, 109

(5th Cir. 1996) (citing § 406.033 of the TWCA).

     Some sixteen months after Strawn commenced working for AFC,

she was injured at work and then began to receive benefit payments

from the AFC plan.   When her AFC benefits were nearing exhaustion,

Strawn brought a negligence suit against AFC in Texas state court.2

AFC removed to federal court based on diversity jurisdiction.

     AFC moved to stay, or to dismiss, and compel arbitration. The

district court denied the motion, stating that “where employers


     1
       The TWCA discourages employers from choosing non-subscriber
status by abolishing all the traditional common law defenses.
     2
        As of August 1999, the AFC plan had paid Strawn $22,459 in
wage-replacement benefits and $24,246.78 in medical benefits.

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offer minimal benefits and unilaterally impose an arbitral forum on

their injured employees, such a forum is sufficiently dissimilar to

a judicial forum as to undermine Texas public policy with respect

to the workers’ compensation system.”          Strawn v. AFC Enterprises,

70 F. Supp. 2d 717, 725-26 (S.D. Tex. 1999).              Thus, the district

court concluded that AFC’s plan was void as against Texas public

policy.

       AFC filed an interlocutory appeal from the district court’s

denial of its motion to compel and moved to stay proceedings

pending appeal.     The district court granted the motion to stay.

AFC now argues that the district court’s order denying its motion

to    compel   arbitration   should    be   reversed      and   remanded   with

instructions to send all Strawn’s claims to binding arbitration and

stay all proceedings pending arbitration.

II.    ANALYSIS

       AFC contends that the district court erred when it adjudicated

Strawn’s    state-law   public   policy     attack   on    AFC’s   arbitration

agreement and benefit plan.           Instead, AFC argues, the district

court should have referred the claim to arbitration in the first

instance.      This Court reviews the denial of a motion to compel

arbitration de novo.      Snap-On Tools Corp. v. Mason, 18 F.3d 1261

(5th Cir. 1994).

       The Supreme Court has made clear that the Federal Arbitration

Act “establishes that, as a matter of federal law, any doubts


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concerning the scope of arbitrable issues should be resolved in

favor   of    arbitration,   whether        the   problem    at   hand   is   the

construction of the contract language itself or an allegation of

waiver, delay, or a like defense to arbitrability.”               Moses H. Cone

Memorial Hospital v. Mercury Construction, 460 U.S. 1, 25-26, 103

S.Ct. 927, 941 (1983).         When determining a motion to compel

arbitration under the Federal Arbitration Act, courts usually

conduct a two-step inquiry.       Webb v. Investacorp, Inc., 89 F.3d

252, 257-58 (5th Cir. 1996).     The first step is to decide whether

the parties agreed to arbitrate the dispute at issue.               Id. at 258.

This decision involves two considerations: (1) whether there is a

valid agreement to arbitrate between the parties; and (2) whether

the dispute is within the scope of that arbitration agreement.                Id.

In making this decision, “courts generally . . . should apply

ordinary     state-law   principles        that   govern    the   formation    of

contracts.”     Id. (citation and internal quotation marks omitted).

“In applying state law, however, `due regard must be given to the

federal policy favoring arbitration, and ambiguities as to the

scope of the arbitration clause itself must be resolved in favor of

arbitration.’” Id. Once a court determines that the parties agreed

to arbitrate, the second step is “‘whether legal constraints

external to the parties’ agreement foreclosed the arbitration of

those claims.’” Id. (quoting Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3355


                                       4
(1985)).

     With respect to the first step of the Webb analysis, Strawn

apparently recognizes that the dispute falls within the arbitration

provision as written; however, she contends that the agreement was

not valid.

      As a threshold issue, AFC, relying on the Supreme Court’s

decision in Prima Paint Corp. v. Flood & Conklin Mfg. Co., contends

that the district court erred by not referring to arbitration the

arbitrability of Strawn’s state-law public policy attack on AFC’s

arbitration agreement and benefit plan.           388 U.S. 395, 87 S.Ct.

1801 (1967).        In Prima Paint, the Supreme Court addressed the

question whether arbitration or the federal district court was the

proper forum in which to resolve a claim of fraud in the inducement

under a contract that included an arbitration provision. The Court

pointed out that 9 U.S.C. § 4 directs a federal court to order

arbitration    to    proceed   if   satisfied   that   “the   making   of   the

agreement for arbitration or the failure to comply [with the

arbitration agreement] is not in issue.”         The Court explained that

“if the claim is fraud in the inducement of the arbitration clause

itself--an issue which goes to the `making’ of the agreement to

arbitrate--the federal court may proceed to adjudicate it. But the

statutory language does not permit the federal court to consider

claims of fraud in the inducement of the contract generally.”

Prima Paint, 388 U.S. at 403-04, 87 S.Ct. at 1806.               The Supreme


                                       5
Court thus held that a federal district court may consider only

issues relating to the making and performance of the agreement to

arbitrate.   Id.   The arbitrator was to resolve any other claims.

     Restated, the rule enunciated in Prima Paint is that if the

complaint relates only to the arbitration clause itself, the court

should adjudicate the claim. If, however, the complaint relates to

the entire agreement, then it must be referred to the arbitrator

for decision.

     Our opinion in Lawrence v. Comprehensive Business Serv. Co.,

provides some guidance with respect to this issue.   833 F.2d 1159

(5th Cir. 1987).     In Lawrence, the plaintiffs argued that the

agreement violated the Texas Public Accountancy Act of 1979 and

that ordering arbitration pursuant to an arbitration clause in an

illegal contract was improper.   Applying the rule in Prima Paint,

we rejected that argument, explaining that previously we had

applied Prima Paint to enforce an arbitration clause in spite of a

claim that the gas sales contract containing it was void from its

inception because of the parties’ failure to comply with a state

statute regulating the sale of the state’s gas.   833 F.2d at 1162

(discussing Mesa Oper. Limited Partnership v. Louisiana Intrastate

Gas Corp., 797 F.2d 238, 244 (5th Cir. 1986).3


     3
        In Bhatia v. Johnston, 818 F.2d 418, 421 (5th Cir. 1987),
this Court held that an investor’s claim that a contract was
invalid must be referred to arbitration because the investor’s
complaint alleged misrepresentations with respect to the entire
contract, not just the arbitration clause.

                                  6
     The plaintiffs in Lawrence also argued that enforcing the

arbitration provision of an illegal contract would contravene Texas

law and is thus improper.    We likewise rejected this argument,

explaining that the “argument forgets that the arbitrability of an

issue under the Federal Arbitration Act is a matter of federal

law.”   Lawrence, 833 F.2d at 1162.   See also Perry v. Thomas, 482

U.S. 482, 492 n.9, 107 S.Ct. 2520, 2527 n.9 (1987) (courts may not

“rely on the uniqueness of an agreement to arbitrate as a basis for

a state-law holding that enforcement would be unconscionable, for

this would enable the court to effect what we hold today the state

legislature cannot”).

     In the instant case, Strawn’s complaint relates to the entire

agreement. Indeed, the district court explicitly understood Strawn

“to be arguing that the combination of a unilaterally imposed

arbitration agreement with a benefit plan significantly inferior to

that available under the Workers’ Compensation Act is void as

against Texas public policy.”   Strawn, 70 F. Supp. 2d at 722.

     Although the district court acknowledged the holding in Prima

Paint, it concluded that the holding applied only to step one of

the previously-cited Webb analysis, not step two.     The district

court believed the rule in Prima Paint was not implicated in this

case because its own “analysis turn[ed] on the second step of the

Webb inquiry.”    Strawn, 70 F. Supp. 2d at 727.       In Strawn’s

appellate brief, however, she admits that she challenges the “AFC


                                 7
arbitration demand under both Step 1 and Step 2 [of the Webb]

analysis[.]”   More importantly, regardless of whether the district

court’s analysis turns on the second step, we are constrained to

apply the Supreme Court’s rule in Prima Paint when determining the

threshold issue of arbitrability.

     The district court, in the alternative, stated that if the

rule in Prima Paint did apply, it construed Strawn to be attacking

the arbitration agreement in isolation.      We are not persuaded.     As

previously stated, it is clear that Strawn’s complaint related to

the entire agreement--both the benefit plan and the arbitration

agreement.

     Standing alone, neither the benefit plan nor the arbitration

clause violate Texas law or public policy.     AFC is not required to

participate in the statutory workers’ compensation plan. Cupit, 90

F.3d at 109.    Participation is voluntary in that an employer may

refrain from becoming a subscriber under the TWCA.             Id.   With

respect to the arbitration clause itself, Strawn was not required

to limit or waive any cause of action; she simply was required to

bring any claims to arbitration rather than to court.      As such, the

only possible claim Strawn has is that the entire agreement, i.e.,

the combination of the benefit plan and the arbitration agreement,

violate Texas public policy.

     Under   these   circumstances,   the   district   court   erred   in

determining the issue of arbitrability. Instead, pursuant to Prima


                                  8
Paint, the district court should have referred Strawn’s claim to

arbitration.      Accordingly, the district court’s order denying the

motion to compel is vacated and remanded with instructions to refer

the   case   to    arbitration   and       stay   the   proceedings   pending

arbitration.

                                                        VACATED AND REMANDED

                           Judge Dennis concurs in the judgment only.




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