Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 06-2694

SLEEPER FARMS; VAUGHN SLEEPER; and MARY SLEEPER,

Plaintiffs, Appellants,

v.

AGWAY, INC., RICHARD SIROIS,

TODD BRADLEY, and CARL SMITH,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Senior Circuit Judge,

and Schwarzer, Senior District Judge. *

Nicholas J.K. Mahoney for appellants.

Frederick J. Badger, Jr. with whom Richardson, Whitman, Large

and Badger was on brief for appellees.

November 2, 2007
-2-

BOUDIN, Chief Judge. This case concerns dealings by

Agway Inc., an agricultural cooperative, with Vaughn and Mary

Sleeper. The Sleepers grew seed potatoes on their farm (Sleeper

Farms) in Sherman Mills, Maine, and claim that Agway owes them

money for potatoes harvested between 1998 and 2001. The parties

have now litigated before a bankruptcy court, an arbitrator, and

the federal district court twice; Agway has gone bankrupt; the

Sleepers are no longer growing potatoes.

Between 1998 and 2001 (three growing seasons), Agway

purchased seed potatoes from Sleeper Farms; Agway would then resell the crop to other farmers for new plantings. In June 2000,

Agway withheld some $51,000 of payment, saying that the Sleepers

had mixed genetically altered potatoes with unaltered potatoes in

a shipment. The parties corresponded about the withheld sum but

reached no agreement; the Sleepers threatened to sue; Agway then

filed a demand for arbitration with the American Arbitration

Association ("AAA"), which the AAA accepted.

On February 21, 2002, the Sleepers filed a complaint in

the federal district court in Maine against Agway and several

individuals associated with that company. The complaint included

multiple common law causes of action and also alleged violations of

various state and federal statutes; it challenged, in addition to

the earlier withholding, other alleged unfair practices by Agway--

unilateral cutting of prices, refusal to accept quantities
The arbitration clause referenced the AAA's procedural rules, 1

one of which permits the arbitrator to rule on such questions of

scope. The Sleepers do not challenge this finding by the district

judge, and so we need not consider whether such a reference meets

the "clear and unmistakable" standard. See Green Tree Fin. Corp.

v. Bazzle, 539 U.S. 444, 452 (2003) (plurality opinion).

-3-

previously ordered, and so on. The Sleepers moved to enjoin the

arbitration, and Agway moved to dismiss or stay court proceedings

pending arbitration. See 9 U.S.C. § 3 (2000).

The district court held an evidentiary hearing on May 15,

2002, after which it denied the motion to enjoin arbitration and

instead ordered a stay of judicial proceedings pending arbitration.

The court determined that Sleeper Farms assented to a series of

purchase orders, which incorporated by reference Agway's standard

sales contract, which in turn included an arbitration clause. None

of the Sleepers' objections to arbitrability was accepted.

The district judge did not reach the question of scope,

i.e. which of the Sleepers' claims fell within the arbitration

clause; that is generally a question for the judge to decide, AT&T

Techs., Inc. v. Commc'n Workers of Am., 475 U.S. 643, 650-51

(1986), but here he found a "clear and unmistakable" delegation of

that power to the arbitrator and told the arbitrator to decide the 1

scope of the clause and the merits of the claims that were within

the scope. We do not have jurisdiction over interlocutory orders

that stay proceedings pending arbitration, 9 U.S.C. § 16(b)(1), and
There was some debate over whether the bankruptcy court or 2

the district court was the proper forum for the post-arbitration

motions, but the bankruptcy court noted that the district court

proceedings had only been stayed, not dismissed, and therefore

directed the parties to return there.

-4-

the Sleepers voluntarily dismissed without prejudice the appeal

that they filed after the order was issued.

Shortly after the district court's order, Agway filed for

bankruptcy and proceedings slowed; but eventually the bankruptcy

court permitted the arbitration to go ahead. In May 2005, the

parties signed an additional stipulation, filed with the AAA, that

"all issues of liability and damages contained within Sleeper

Farm's Complaint . . . shall be determined through arbitration in

this forum." The implications of this stipulation are disputed.

On the merits, in an award issued on December 16, 2005,

the arbitrator awarded some $82,000 (plus costs) to Sleeper Farms.

He found that Agway's withholding of payment in June 2000 had been

improper, but rejected most of the Sleepers' other claims. Not

satisfied with this limited victory, the Sleepers returned to the

district court and moved to vacate the award. Agway moved to 2

confirm it. Finding neither fraud nor manifest disregard of law,

the court upheld the arbitrator's award.

On appeal, the Sleepers challenge both of the district

judge's orders: the 2002 order referring the dispute to the

arbitrator, and the 2006 order confirming the arbitrator's award.

The former was not appealable on an interlocutory basis, but as
-5-

with non-final orders generally, it can be challenged along with

the final judgment. Tejidos de Coamo, Inc. v. Int'l Ladies'

Garment Workers' Union, 22 F.3d 8, 11 (1st Cir. 1994). We first

consider the challenges to the initial order.

As a threshold matter, Agway points out that the

stipulation stated that the Sleepers agreed to have "all issues of

liability and damages" resolved through arbitration. It argues

that none of the objections to the July 2002 order matter anymore,

claiming the stipulation signed by the parties provided an

independent basis for the arbitrator's authority. Indeed, as Agway

reads the stipulation, the Sleepers abandoned their original

objection to the reference.

Agway's position is arguable, but we think that the more

reasonable reading of the stipulation favors the Sleepers. At the

arbitration, the parties could have continued to argue about which

of the numerous claims made by the Sleepers fell within the

arbitration clause--the scope question having been explicitly

referred to the arbitrator by the district court. But the claims

were intertwined and overlapping and it was efficient for the

parties to agree to treat the whole group as within the scope.

The Sleepers' objections to sending the case to the

arbitrator and the manner of its sending were of a different order.

Those objections involved not the scope of the clause but whether

Agway could invoke the arbitration clause at all and whether the
-6-

reference by the district court properly allowed the arbitrator to

consider other, non-scope objections. The Sleepers had reason to

preserve such claims for eventual appeal and no obvious motive for

abandoning them. 

Although the stipulation would have been clearer with an

express reservation as to these non-scope objections, the Sleepers

did not waive them. We therefore consider the claims, the district

court's legal conclusions being open to de novo review. Marie v.

Allied Home Mortgage Corp., 402 F.3d 1, 9 (1st Cir. 2005). As it

turns out, our interpretation of the stipulation does not affect

the result: the district court rightly sent the case to the

arbitrator and the terms of the reference did not foreclose any of

the Sleepers' legitimate objections.

In the district court the Sleepers objected to any

reference--saying that they had never agreed to arbitrate and, in

the alternative, that the arbitration clause was unenforceable on

various grounds. Claims of the former class--for example, that

they had never agreed to any arbitration clause--were for the

district court. AT&T Techs., 475 U.S. at 648-49. But the district

court resolved claims of this type against the Sleepers and they

are not pursued on this appeal.

By contrast, various claims of unenforceability were made

but on appeal the Sleepers press only two: that the contracts were

illegal (or "void ab initio" as they put it) and that Agway waived
-7-

its right to arbitrate. Correctly, the Sleepers assume that such

claims were properly for the arbitrator; their objection here is

that the wording of the district court's reference to the

arbitrator did not allow the arbitrator to address those claims. 

Indeed, the reference did not refer such claims to the

arbitrator as objections to arbitration. The district judge told

the arbitrator to determine (i) the scope of the arbitration clause

and (ii) the merits of whichever of the Sleepers' federal claims

fell within the clause's scope. But the district court was correct

in thus framing the issues. The illegality and waiver arguments

present different problems and we address them in that order. 

The Sleepers' "void ab initio" argument goes to the

validity of the substantive provisions of the contract, not to

arbitrability. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.

440, 445-446 (2006). As a matter of federal law, the arbitration

clause is unaffected even if the substance of the contract is

otherwise void or voidable. Prima Paint Corp. v. Flood & Conklin

Mfg. Co., 388 U.S. 395, 403-04 (1967). Without this rule, the

merits of a contractual dispute would often have to be adjudicated

in court in order to determine whether the dispute is arbitrable.

If the contract was illegal or if Agway's alleged breach

excused promised performance by the Sleepers, the Sleepers might

then win the arbitration on the merits. But illegality or breach

are simply merits issues that affect what performance is due from
-8-

each side and what remedies should be ordered. Here, the void ab

initio claim was referred to the arbitrator when the court directed

that the arbitrator rule on "the merits of the issues"; and the

arbitrator did consider the validity of the contracts under Maine

law.

 By contrast, a claim of waiver may be a genuine

challenge to arbitrability. See Menorah Ins. Co. v. INX Reins.

Corp., 72 F.3d 218, 221-22 (1st Cir. 1995). But where a party

challenges only "procedural" arbitrability, the court under

recently consolidated Supreme Court doctrine is to defer to the

arbitrator--for example, as to whether contractual time limits have

been adhered to, Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79,

84-85 (2002), or prerequisites (such as internal grievance

procedures) have been met, John Wiley & Sons, Inc. v. Livingston,

376 U.S. 543, 557 (1964), or laches or estoppel have barred the

invocation of arbitral rights, Moses H. Cone Memorial Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).

 Waiver claims fall into this category of threshold issues

for the arbitrator, Howsam, 537 U.S. at 84; cf. Marie, 402 F.3d at

14 (exception for waiver claims based on litigation activity), and

the Sleepers are correct that the district court did not instruct

the arbitrator to make that threshold determination. But a closer

examination of their original "waiver" argument before the district
The Sleepers' response to Agway's motion to stay the 3

proceedings did make a waiver argument, but it was hidden within a

subsection that purports to argue that "Agway's Own Conduct Reveals

That The Parties Never Intended To Make the 'Agway Sales Contract'

A Basis of their Bargain." The two arguments were conflated

throughout, likely contributing to the confusion surrounding the

argument and who was to decide it. In their reply brief, the

Sleepers now characterize their argument as an "issue of Laches or

Estoppel," but the Sleepers did not argue laches or estoppel to the

district judge or even in their opening brief in this court, which

alone forfeits that claim. Keeler v. Putnam Fiduciary Trust Co.,

238 F.3d 5, 10 (1st Cir. 2001).

-9-

court reveals that, even if sufficiently presented to avoid

forfeiture, it did not state a genuine challenge to arbitrability. 3

Essentially, the waiver claim reflects the Sleepers'

position that Agway unilaterally withheld payment due by contract;

that such withholding constituted a breach of contract; further,

that Agway breached the arbitration clause by taking that self-help

measure rather than immediately invoking arbitration to resolve the

dispute; and that the breach or the self-help or both constituted

implicit waivers of Agway's right to arbitrate now.

But, as already noted, breach of the substantive contract

is not a permitted objection to arbitrability; it is a merits

question, one that the arbitrator considered and based on which

even awarded damages to the Sleepers. Cf. Prima Paint, 388 U.S. at

404. To the extent that the Sleepers claim that Agway breached the

arbitration clause by resorting to self-help, that is (at least in

form) a procedural arbitrability argument--but one that is utterly

empty: nothing in the agreement or incorporated AAA arbitration
Indeed, before the Supreme Court clarified that procedural 4

arbitrability objections should go to the arbitrator, Howsam, 537

U.S. at 84-85, courts routinely rejected "waiver" arguments of this

sort. See Local Union No. 721, United Packinghouse v. Needham

Packing Co., 376 U.S. 247, 251-53 (1964); Welborn Clinic v.

Medquist, Inc., 301 F.3d 634, 637 (7th Cir. 2002); Morrie Mages &

Shirlee Mages Found. v. Thrifty Corp., 916 F.2d 402, 404 (7th Cir.

1990); Southwest Indus. Imp. & Exp., Inc. v. Wilmod Co., 524 F.2d

468, 469-70 (5th Cir. 1975).

The Federal Arbitration Act enumerates specific grounds for 5

which an award can be vacated by the district court, 9 U.S.C. §

10(a), and there are limited extra-statutory grounds that could

-10-

rules suggests that engaging in self-help waives arbitration

rights.4

The Sleepers might still insist that because this version

of their waiver claim was in form a procedural arbitrability

objection (albeit one that lacked merit), they were entitled to

have the arbitrator rule on it in the first instance. Arguably, a

claim so lacking in merit might not need to be referred to

arbitration, cf. Bell v. Hood, 327 U.S. 678, 682-83 (1946); but in

any event this waiver claim was not clearly preserved (note 3,

above); and, if it had been referred, the arbitrator would have had

to reject it on the merits.

We turn now to the Sleepers' second group of arguments,

directed to whether the arbitration award should be vacated. Our

review is "exceedingly narrow," In re Vital Basics Inc., 472 F.3d

12, 16 (1st Cir. 2006), and "tightly circumscribed." Cytyc Corp.

v. DEKA Prods. Ltd. P'ship, 439 F.3d 27, 32 (1st Cir. 2006). A

district court may set aside an award only on limited grounds. We 5
also merit vacatur. Advest, Inc. v. McCarthy, 914 F.2d 6, 8 (1st

Cir. 1990).

-11-

review the district court for clear error on factual findings and

de novo as to legal conclusions. First Options of Chicago, Inc. v.

Kaplan, 514 U.S. 938, 947-49 (1995).

Of the two grounds put forward by the Sleepers for

vacating the award, we need only consider one. In their brief,

they assert that the arbitrator acted "in manifest disregard of the

law," cf. Prudential-Bache Secs., Inc. v. Tanner, 72 F.3d 234, 240

(1st Cir. 1995), but do not actually make any arguments to support

that claim. Instead, they purport to "incorporate[] by reference"

their motion before the district court. That is not acceptable:

this court will only consider arguments made before this court;

everything else is deemed forfeited. United States v. Beltran, ---

F.3d ---, 2007 U.S. App. LEXIS 22054, at *4 (1st Cir. Sep. 14

2007).

Next, the Sleepers attempt to tar the arbitral award as

contrary to public policy--particularly, the policy reflected in

the Maine Potato Licensing Act, 7 M.R.S.A. § 1022 (2007). Since

the statute is designed (they say) to "protect the potato farmer

from the placing of oral planting orders," the Sleepers argue that

the arbitrator should not have invoked the statute of frauds to bar

any of their claims. 
-12-

Their theory seems to be that if (as they allege) oral

contracts were made despite the statutory requirement of a detailed

written record, those contracts should be enforced against the

purchasers as a form of penalty notwithstanding the general

doctrine that voids such agreements. But a contract can only be

enforced if it exists--and the arbitrator found that there were no

such oral contracts between Agway and the Sleepers; he invoked the

statute of frauds only as an alternative ground of decision.

Even if the Sleepers' argument rested on a sound premise,

legal mistakes by the arbitrator are not automatically subject to

correction on judicial review, United Paperworkers Int'l Union v.

Misco, Inc., 484 U.S. 29, 38 (1987), even when they are alleged to

touch on public policy. W.R. Grace & Co. v. Local Union 759, Int'l

Union of United Rubber, 461 U.S. 757, 766 (1983) (describing

exceptions). Since the premise fails, we need not fine tune the

limits on reviewability.

Affirmed.