Gove v. Career Systems Development Corp.

United States Court of Appeals
For the First Circuit

No. 11-2468

ANN GOVE,

Plaintiff, Appellee,

v.

CAREER SYSTEMS DEVELOPMENT CORPORATION,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

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

Before

Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.

David A. Strock, with whom Philip Moss and Fisher & Phillips
LLP were on brief, for appellant.
Arthur J. Greif, with whom Gilbert & Greif, P.A. was on brief,
for appellee.

July 17, 2012
 LIPEZ, Circuit Judge. This case concerns a company's

effort to enforce an arbitration clause contained in a job

application against an unsuccessful applicant. Appellee Ann Gove

filed suit against Career Systems Development Corporation ("CSD")

alleging that she was denied a position because of her gender and

pregnancy at the time of her application. CSD moved to compel

arbitration pursuant to an arbitration clause in Gove's job

application, but was rebuffed by the district court. The court

concluded that the arbitration clause was ambiguous as to whether

disputes between CSD and applicants who were not hired were

covered, and that this ambiguity must be construed against CSD.

We affirm the judgment, albeit on somewhat different

reasoning.

I.

CSD's motion to compel arbitration was made in connection

with a motion to dismiss or stay. Accordingly, the following

recitation of the facts is drawn from Gove's complaint as well as

documents submitted to the district court in support of CSD's

motion to compel arbitration. The facts are undisputed.

In May 2008, Gove began working for the Training &

Development Corp. ("TDC"), a job training and placement

organization, which had a contract to provide services to the

Loring Job Corps ("Loring"), a technical career training program.

In early April 2009, TDC employees were informed that CSD had been

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awarded the Loring contract and that, beginning May 1, 2009, it

would be providing the services previously furnished by TDC.

During the transition period, CSD offered all TDC employees

currently placed at Loring the opportunity to apply for jobs. Gove

chose to do so and, on April 8, 2009, she completed an online

application for a position with CSD similar to the one that she

held with TDC.

The final section of the application included the

following provision:

CSD also believes that if there is any dispute
between you and CSD with respect to any issue
prior to your employment, which arises out of
the employment process, that it should be
resolved in accord with the standard Dispute
Resolution Policy and Arbitration Agreement
("Arbitration Agreement") adopted by CSD for
its employees. Therefore, your submission of
this Employment Application constitutes your
agreement that the procedure set forth in the
Arbitration Agreement will also be used to
resolve all pre-employment disputes. A copy
of that procedure is on display in our
employment office and a copy [of the]
Arbitration Agreement setting forth that
procedure will be provided to you.

If you have any questions regarding this
statement and the Arbitration Agreement,
please ask a CSD representative before
acknowledging, because by acknowledging, you
acknowledge that you have received a copy of
the Arbitration Agreement and agree to its
terms. Do not check the Accept box below
until you have read this statement.

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Directly following this provision was the statement "I accept the

terms of the above agreement: G Accept." Gove placed a checkmark

in the "accept" box and submitted her job application to CSD.

On April 21, Gove was interviewed by representatives of

CSD. At the time, she was visibly pregnant and due to deliver on

May 30. During the interview, she was asked "How much longer do

you have?" She replied that she was due in about five weeks. When

Gove was also asked whether she had any other children, she

informed the interviewer that she had a seven-year-old son.

Gove was not hired by CSD, although CSD continued to have

a need for the position she had applied for and continued to

advertise for the position. Subsequently, Gove filed a complaint

with the Maine Human Rights Commission ("MHRC"), which found

reasonable grounds to conclude that she was denied the position

because of her pregnancy. After the MHRC was unable to persuade

the parties to reach a conciliation agreement, Gove filed suit in

the United States District Court for the District of Maine,

alleging that CSD discriminated against her on account of her

gender and her pregnancy in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, and the Maine Human Rights

Act, Me. Rev. Stat. tit. 5, §§ 4551-4634. CSD moved to compel

arbitration, arguing that Gove was bound by the arbitration clause

in the job application. The district court, however, found that

the arbitration clause was not valid. It reasoned that the

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provision was ambiguous as to whether it covered an applicant such

as Gove, who was never hired, and concluded that such an ambiguity

must be construed against CSD, the drafter of the agreement. CSD

now brings this interlocutory appeal challenging the district

court's decision.1

II.

We review both the interpretation of arbitration

agreements and orders compelling arbitration (or declining to do

so) de novo. Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638

F.3d 367, 373 (1st Cir. 2011) (citing South Bay Bos. Mgmt., Inc. v.

UNITE HERE, Local 26, 587 F.3d 35, 42 (1st Cir. 2009)). Therefore,

we may affirm the district court's order "on any independent ground

made manifest by the record." Soto-Fonalledas v. Ritz-Carlton San

Juan Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011)

(internal quotation mark omitted).

In deciding a motion to compel arbitration, a court must

ascertain whether: "(i) there exists a written agreement to

arbitrate, (ii) the dispute falls within the scope of that

arbitration agreement, and (iii) the party seeking an arbitral

forum has not waived its right to arbitration." Combined Energies

1
Typically, interlocutory orders are not immediately
appealable. See 28 U.S.C. § 1291; see also Campbell v. Gen.
Dynamics Gov't Sys. Corp., 407 F.3d 546, 550 (1st Cir. 2005)
(stating same). However, the Federal Arbitration Act creates an
exception for orders denying petitions to compel arbitration. 9
U.S.C. § 16(a)(1)(B); see also Campbell, 407 F.3d at 550.

-5-
v. CCI, Inc., 514 F.3d 168, 171 (1st Cir. 2008). As the Supreme

Court has explained, it is a "fundamental principle that

arbitration is a matter of contract." Rent-A-Center, West, Inc.,

v. Jackson, 130 S. Ct. 2772, 2776 (2010). Accordingly, "principles

of state contract law control the determination of whether a valid

agreement to arbitrate exists." Soto-Fonalledas, 640 F.3d at 475

(internal quotation marks omitted).

In this case, the parties agree that Maine law governs.

Under Maine law,

[a] contract exists if the parties mutually
assent to be bound by all its material terms,
the assent is either expressly or impliedly
manifested in the contract, and the contract
is sufficiently definite to enable the court
to ascertain its exact meaning and fix exactly
the legal liabilities of each party.

Sullivan v. Porter, 861 A.2d 625, 631 (Me. 2004). Additionally,

"[a] contract is to be interpreted to effect the parties'

intentions as reflected in the written instrument, construed with

regard for the subject matter, motive, and purpose of the

agreement, as well as the object to be accomplished." V.I.P., Inc.

v. First Tree Dev. Ltd. Liab. Co., 770 A.2d 95, 96 (Me. 2001)

(internal quotation marks omitted).

The Maine Law Court has applied to arbitration clauses

the "bedrock rule of contract interpretation . . . that ambiguities

in a document are construed against its drafter." Barrett v.

McDonald Invs., Inc., 870 A.2d 146, 150-51 (Me. 2005). This rule

-6-
is intended to effectuate the intent of the parties, and is based

on the "presum[ption] that [the drafter] will not leave undeclared

that which he would claim as his right under the agreement." Id.

at 150 (quoting Monk v. Morton, 30 A.2d 17, 19 (Me. 1943)).

Language in a contract is ambiguous "if it is reasonably

susceptible to different interpretations." Champagne v. Victory

Homes, Inc., 897 A.2d 803, 805 (Me. 2006).

The Law Court has explained that "[t]he rationale for

interpreting ambiguities against the drafter is particularly

compelling in contracts where one party had little or no bargaining

power." Barrett, 870 A.2d at 150. Thus, where the parties are in

unequal bargaining positions, such as "[w]here a standard-form,

printed contract is submitted to the other on a 'take it or leave

it' basis, upon equitable principles the provisions of the contract

are generally construed to meet the reasonable expectations of the

party in the inferior bargaining position." Id. (internal

quotation marks omitted).

III.

The parties present dueling interpretations of the

arbitration clause at issue. As a preliminary matter, we must

determine whether this dispute goes to the existence of a valid

arbitration agreement between the parties or merely the scope of

any such agreement. The district court found that the validity of

the agreement itself was called into question. Gove v. Career Sys.

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Dev. Corp., 824 F. Supp. 2d 205, 211 (D. Me. 2011). We take a

different view. Gove does not dispute that if she had been hired,

she would have been obligated to arbitrate disputes stemming from

events that occurred prior to her employment. Thus, she is arguing

that her employment by CSD is a condition precedent to her

obligation to arbitrate. However, the non-occurrence of a

condition precedent does not render an agreement invalid. It

simply means that the duty to perform does not arise. See Hope

Furnace Assocs., Inc. v. F.D.I.C., 71 F.3d 39, 43 (1st Cir. 1995);

Restatement (Second) of Contracts § 224 cmt. c (1981).

Furthermore, although Gove ostensibly defends the court's

conclusion that there is no valid agreement, her briefing belies

this defense when she acknowledges that "[the arbitration clause]

does not reach a non-employee's application for employment, but

only disputes the hired employee has that arise out of her

application." Thus, she concedes that the agreement is enforceable

in certain circumstances. This concession was apt. This is a

dispute concerning the scope of the arbitration clause, not its

validity.

Normally, in evaluating the scope of an arbitration

agreement, we would give significant weight to the federal policy

favoring arbitration and the presumption of arbitrability.2 See

2
We have often observed that in evaluating an arbitration
clause, courts must give due regard to the federal policy favoring
arbitration. See Dialysis Access Ctr., 638 F.3d at 376. Pursuant

-8-
Dialysis Access Ctr., 638 F.3d at 376. However, on appeal, CSD has

not argued this federal policy, confining itself instead to

arguments of contract interpretation under Maine law. This

omission is especially telling because CSD emphasized the federal

policy favoring arbitration in its briefing to the district court.

See SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (noting that

arguments made before a district court, but not pursued on appeal,

are deemed abandoned); United States v. Capozzi, 486 F.3d 711, 719

n.2 (1st Cir. 2007) ("We have consistently held that arguments not

raised in the initial appellate legal brief are considered

waived."). CSD does mention the federal policy in a block quote in

its initial appellate brief, but it makes no argument based on this

policy. We have explained that it is a "'settled appellate rule

that issues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.'"

United States v. Hughes, 211 F.3d 676, 684 n.6 (1st Cir. 2000)

(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

The absence of any argument on the federal policy favoring

to this policy, "ambiguities as to the scope of the arbitration
clause itself [must be] resolved in favor of arbitration." Id.
However, this presumption of arbitrability applies only to the
scope of an arbitration agreement, not its validity, and thus it is
utilized only where an arbitration agreement is "validly formed and
enforceable" under state law, but "ambiguous about whether it
covers the dispute at hand." Id. (quoting Granite Rock Co. v.
Int'l Bhd. of Teamsters, 130 S. Ct. 2847, 2858 (2010)). Maine
courts have recognized a similar Maine policy favoring arbitration,
but, like federal courts, they apply it only if "the parties have
generally agreed to arbitrate disputes." V.I.P., 770 A.2d at 96.

-9-
arbitration is consistent with CSD's explicit disavowal of any

reliance on rules of construction. After arguing exclusively that

the provision is not ambiguous, it concludes its argument

concerning the scope of the arbitration clause by asserting that

"there is no need to resort to the various rules of construction

when the plain language of the agreement is unambiguous." Because

CSD has not relied on federal law or explained the interaction of

the federal policy favoring arbitration with Maine contract law, we

will not consider arguments based on the federal policy that it

chose not to make.3

Turning to Maine law, we must determine whether the

arbitration clause is ambiguous in its coverage of applicants who

are not hired. CSD argues that the clause unambiguously covers all

disputes between it and applicants for employment. It asserts that

"the term 'pre-employment' is widely understood to refer to the

3
We do not dispute the dissent's reading of our precedents
concerning the federal policy favoring arbitration. But the
dissent attempts to bring these precedents to bear in support of an
argument that appellant does not make. To the extent that the
dissent suggests that the principle announced in Kristian v.
Comcast Corp., 446 F.3d 25 (1st Cir. 2006), is unwaivable by a
failure to argue it, we disagree. The dissent cites no authority
for this proposition and we are not aware of any. Additionally, it
is important to understand the interest in fairness underlying our
waiver doctrine. Because CSD never developed an argument
concerning the federal policy favoring arbitration, Gove,
understandably, did not consider the issue to be part of this
appeal. Following CSD's lead, Gove's responsive brief argues the
case exclusively on grounds of Maine law. Accepting the dissent's
invitation to decide the case on grounds not introduced by CSD
would be unfair to Gove, who was entitled to rely on CSD's
identification of the issues raised in its opening brief.

-10-
period of time between the submission of an application and hiring,

whether or not someone is hired," and that "employment process"

refers to every step of the potential employment relationship

between Gove and itself. It also argues that arbitration clauses

are subject to broad interpretation as a matter of Maine law.

In contrast, Gove argues that the clause's references to

the "employment process" and "pre-employment disputes" should be

read literally. Under her reading, if one is never employed by

CSD, then a dispute cannot be "pre-employment" or related to the

"employment process," and the arbitration clause is inapplicable.

Gove argues that this reading is particularly appealing to a lay

person to whom the phrase "employment process" "clearly meant the

process culminating in her hire, a process from which she never

benefitted." See Alt. Energy, Inc. v. St. Paul Fire & Marine Ins.

Co., 267 F.3d 30, 34 (1st Cir. 2001) (noting that under Maine law

"[a]mbiguity [of a contract] is to be determined from the

perspective of an ordinary or average person").

Importantly, nothing in the arbitration clause refers to

"applicants." Instead, every reference is to "your employment,"

"the employment process," or "pre-employment disputes."

Accordingly, there is a reasonable basis for Gove's belief that she

would only be bound by the arbitration clause if ultimately hired.

Then, if she had post-hire claims arising out of promises made or

actions taken during the hiring process (e.g., claims that she was

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being paid less or given fewer hours than she had been led to

believe, or claims that similarly situated male employees were

hired to more favorable positions or awarded a higher pay rate),

she would be obligated to pursue those claims in an arbitral forum.

This reading is consistent with both the arbitration clause in

Gove's application and the incorporated Pre-Dispute Arbitration

Policy, which identifies covered disputes as including, inter alia,

"[a]ll disputes and claims which arise out of or relate in any

manner to the Employee's application for employment or employment

with the Company." (Emphasis added.) Thus, it can be fairly said

that the agreement is susceptible to different interpretations.

See Champagne, 897 A.2d at 805.

In Johnson v. Circuit City Stores, 148 F.3d 373 (4th Cir.

1998), the Fourth Circuit considered the enforceability of a

dispute resolution agreement compelling arbitration. That case

also involved an unsuccessful applicant who sought to avoid an

arbitration clause contained in a job application. Although the

central issue in Johnson was whether there was adequate

consideration supporting the agreement, and not the issue before us

now, the case features an agreement that unambiguously binds job

applicants. There, the agreement required that the applicant

accept the statement "I will be required to arbitrate any and all

employment-related claims I may have against Circuit City, whether

or not I become employed by Circuit City." Id. at 374. Of course,

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just because the agreement in this case could have been drafted

more clearly does not necessarily mean that it is ambiguous as to

the obligation to arbitrate in the circumstances of this case.

However, the agreement in Johnson offers a useful touchstone for

clarity, reinforcing our conclusion that CSD's provision is

ambiguous.

Given this ambiguity, we are bound by Maine law's

"bedrock rule of contract interpretation . . . that ambiguities in

a document are construed against its drafter." Barrett, 870 A.2d

at 150. In Barrett, the Law Court considered an arbitration

agreement entered into by retirees and their investment advisor.

A dispute arose as to whether the agreement's scope included tort

claims that had no nexus with the advisor's administration of the

retirees' investment account, and the court found the agreement to

be ambiguous. Not only did the court construe the ambiguity

against the advisor, who had drafted the agreement, but it noted

that the rationale for doing so was "particularly compelling" given

the unequal bargaining positions of the parties and the fact that

the contract was offered to the retirees on a "take it or leave it"

basis. Id. at 150-51. This case is similar. Not only was Gove in

no position to bargain over the terms of the employment

application, but she was also required to accept the arbitration

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clause as part of an online job application with no meaningful

opportunity to inquire as to its meaning.4

To be sure, the Law Court also acknowledged in Barrett

that Maine has "a broad presumption favoring arbitration." Id. at

149; see also Anderson v. Banks, 37 A.3d 915, 921 (Me. 2012)

(recognizing same). The court noted that this presumption was at

odds with the principle of construing ambiguities against the

drafter of a contract. However, it resolved this conflict in favor

of the latter principle, explaining that "[i]n this context, where

an individual with little leverage is entering into an agreement

with a larger entity that offers its services on a 'take it or

leave it' basis, we conclude that the balance tips in favor of

applying the equitable rule favoring the construction of the

contract against the drafter." 870 A.2d at 151; cf. Anderson, 37

A.3d at 921 n.9 (noting that, where parties are in approximately

equal bargaining positions, the equitable principle of construing

a contract against the drafter is less compelling).

Applying Maine contract law, we must follow the Law

Court's lead. Because of the obligation under Maine law to

construe ambiguities against the drafter of a contract, we conclude

4
The clause does state, "If you have any questions regarding
this statement and the Arbitration Agreement, please ask a CSD
representative before acknowledging." However, no contact
information is provided and, because the application is to be
completed online, an applicant may be required to agree to
arbitrate before having any contact with a CSD representative.

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that Gove is not required to arbitrate her claims. Therefore, the

judgment of the district court is affirmed and the case is remanded

for further proceedings consistent with this opinion.

So ordered.

– Dissenting Opinion Follows –

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 TORRUELLA, Circuit Judge (Dissenting). The panel

majority acknowledges that Gove's application for employment at CSD

contained a valid agreement to arbitrate. Nonetheless, it

concludes that Gove is not required to take her claims to

arbitration because principles of Maine contract law --

specifically, the Maine Law Court's fealty to the tenet of contra

proferentem5 for adhesion contracts -- require us to interpret any

ambiguity in the scope of the agreement against the drafter

(here, CSD). This it reasons, despite the otherwise broad federal

principle that doubts about an arbitration clause's scope should be

resolved in favor of arbitrability. See Maj. Op. at 8 n.2 (citing

Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 376

(1st Cir. 2011)). My colleagues' conclusion is premised on their

understanding that CSD effectively waived any arguments based on

the federal policy favoring arbitration by limiting its discussion

on appeal to questions of contract interpretation under Maine law.

Because I do not agree that any such waiver occurred in this case,

and because I believe precedent requires us to decide the issue

before us in favor of arbitrability, I respectfully dissent.

To begin with, the majority's application of the contra

proferentem principle to resolve ambiguities regarding the scope of

5
The contract principle of contra proferentem is a Latin term
meaning "against the offeror" and stands for "[t]he doctrine that,
in interpreting documents, ambiguities are to be construed
unfavorably to the drafter." Black's Law Dictionary 377 (9th ed.
2009).

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the arbitration clause against arbitrability is antithetical to a

previous holding of this court that is directly on point. In

Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006), we reversed

an analogous ruling by the U.S. District Court for the District of

Massachusetts denying a motion to compel arbitration because, in

doing so, the lower court had "incorrectly relied on the

[Massachusetts] contract principle requiring contracts of adhesion

to be construed strictly against the drafter," id. at 35. We

reasoned that, because the plaintiffs were "in fact raising a scope

question," i.e., the "[p]laintiffs argue[d] that their antitrust

claims d[id] not fall within the scope of the arbitration

agreements as a result of non-retroactivity," the general rule

applying a "presumption in favor of arbitration" governed. Id.

Accordingly, we unequivocally held that "[w]here the federal policy

favoring arbitration is in tension with the tenet of contra

proferentem for adhesion contracts, and there is a scope question

at issue, the federal policy favoring arbitration trumps the state

contract law tenet." Id. (second emphasis added). The Kristian

panel noted that "[t]his result makes sense because, once the

dispute is in arbitration, the tenet of contra proferentem can

still be applied by the arbitrator on non-scope issues."

Id. at 35 n.7.

Thus, while I fully agree with the majority's threshold

conclusion in this case, that we are considering here "a dispute

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concerning the scope of the arbitration clause, not its validity,"

Maj. Op. at 8, given our holding in Kristian, I do not consider it

sufficient here to resort to the doctrine of waiver in order to

avoid taking into account "the interaction of the federal policy

favoring arbitration with Maine contract law," Maj. Op. at 10.

Indeed, Kristian appears to require the opposite outcome than my

colleagues in the majority reach in this case. See United States

v. Guzmán, 419 F.3d 27, 31 (1st Cir. 2005) ("In a multi-panel

circuit, . . . newly constituted panels ordinarily are constrained

by prior panel decisions directly (or even closely) on point.").

As to the issue of waiver, the record shows that CSD

presented its motion to compel arbitration pursuant to the Federal

Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16, and neither party

contests that the arbitration clause at issue is subject to the

provisions of the FAA. See Preston v. Ferrer, 552 U.S. 346, 349

(2008) (noting that FAA "establishes a national policy favoring

arbitration when the parties [so] contract" and that "it calls for

the application, in state as well as federal courts, of federal

substantive law regarding arbitration"). Further, as the majority

acknowledges, CSD emphasized the federal policy favoring

arbitration to the court below, citing Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), for the

proposition that "any doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration," id. at 626

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(quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460

U.S. 1, 24-25 (1983)). It was upon Gove's opposition to CSD's

motion to compel that the emphasis below turned to the tenet of

contra proferentem for adhesion contracts, which under Maine law

must be applied in the context of arbitration agreements to resolve

ambiguities in contractual language against the drafter. See

Barrett v. McDonald Invs., Inc., 870 A.2d 146, 150-51 (Me. 2005)

(acknowledging Maine Law Court's "retreat from [its] previously

broad presumption in favor of arbitration" and holding that

ambiguous arbitration clauses will be interpreted against

drafters). The district court then followed the Maine Law Court's

preference for the contractual doctrine in ruling against the

existence in this case of a valid agreement to arbitrate. See Gove

v. Career Sys. Dev. Corp., 824 F. Supp. 2d 205, 210-11 (D. Me.

2011).

Given how this case evolved below, it was appropriate for

CSD to devote a considerable portion of its initial brief on appeal

to refuting the district court's premise that there was any

ambiguity in the arbitration clause to begin with,6 and to

6
I take issue with the majority's suggestion that because CSD
indicated at one point in its briefing that "there [was] no need to
resort to the various rules of construction when the plain language
of the agreement is unambiguous," it necessarily waived any
argument based on the federal policy. See Maj. Op. at 9. It is
acceptable for parties to make arguments in the alternative, see,
e.g., Fed. R. Civ. P. 8(d)(2) (indicating that pleadings containing
alternative statements of a claim or defense "[are] sufficient if
any one [of the alternative statements] is sufficient"), and it was

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highlighting other Maine case law that might persuade this court to

follow a different route on appeal. Moreover, I acknowledge that

CSD did not specifically rely on Kristian to support its argument

in favor of arbitration in the scope analysis. However, it is

evident from reading the parties' briefs on appeal, including CSD's

reply to Gove's appellee brief, that CSD took steps sufficient to

bring the federal policy concern to this court's attention and,

hence, bring our controlling precedent to bear on the case.

To that end, in its initial briefing, CSD discussed our

circuit's case law regarding the appropriate legal standard for

analyzing a motion to compel arbitration. It cited to Combined

Energies v. CCI, Inc., 514 F.3d 168 (1st Cir. 2008), in which we

set forth our three-pronged approach for assessing motions to

compel arbitration, consisting of a determination whether (1) there

exists a valid agreement to arbitrate, (2) the dispute falls within

the scope of that agreement, and (3) the right to arbitration was

or was not waived by the movant. Id. at 171. CSD posited that

only the first and second prongs of the analysis were at issue

here, and that the plain language of Gove's employment application

satisfied both prongs. Importantly, CSD argued that "the

determination of the existence of a valid agreement to arbitrate is

sensible in this case for CSD to make its initial line of attack an
argument against the ambiguity of the arbitration clause. I do not
interpret CSD's discussion in this regard as relinquishing the
position that any potential ambiguities found by this court should
be interpreted in favor of arbitration.

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analytically distinct from the scope of such [an] agreement[]."

CSD then emphasized that in determining "the existence of a valid

agreement to arbitrate, the courts look to state contract law," and

quoted language from Soto-Fonalledas v. Ritz-Carlton San Juan Hotel

Spa & Casino, 640 F.3d 471 (1st Cir. 2011), to that effect. Id. at

475 (indicating that "principles of state contract law control the

determination of whether a valid agreement to arbitrate exists")

(quoting Campbell v. Gen. Dyn. Gov't Sys. Corp., 407 F.3d 546, 552

(1st Cir. 2005)). CSD then moved into its discussion of Maine

contract law to support its contention that the clear language of

the agreement required arbitration.

Notably, after concluding its discussion of why, under

the first prong of the analysis, there existed a valid agreement to

arbitrate, CSD made a separate case for why Gove's dispute with CSD

falls within the scope of that agreement. That discussion included

an excerpt from Dialysis Access Center, LLC v. RMS Lifeline, Inc.,

638 F.3d 367 (1st Cir. 2011), which indicated, in relevant part,

that "[w]hen deciding whether the parties agreed to arbitrate a

certain matter . . ., courts generally . . . should apply ordinary

state-law principles that govern the formation of contracts," but

"[i]n carrying out this endeavor, due regard must be given to the

federal policy favoring arbitration, and ambiguities as to the

scope of the arbitration clause itself resolved in favor of

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arbitration." Id. at 376 (internal citations and quotation marks

omitted) (emphasis added).

Certainly, as the majority points out, the discussion

that followed this reference relied on Maine case law and focused

on why state contract principles required interpreting the

arbitration clause broadly. However, CSD subsequently used its

reply brief to flesh-out the idea that it had already introduced,

i.e., that under our case law arbitrability should be favored in

the scope analysis.7 Specifically, CSD quoted from Paul Revere

Variable Annuity Insurance Co. v. Kirschhofer, 226 F.3d 15 (1st

Cir. 2000), where we indicated that "generally speaking, the

presumption in favor of arbitration applies to the resolution of

scope questions." Id. at 25.

It is significant that CSD relied on Paul Revere because

that case dealt with issues analogous to the ones currently sub

7
CSD elaborated this point in its reply brief because it
understood the argument in Gove's appellee brief as "conflating the
two issues," that is, (1) whether there exists a valid agreement to
arbitrate and (2) whether the scope of any such agreement covers
the dispute at hand. CSD indicated that this resulted in Gove's
"ignor[ing] (or perhaps attempt[ing] to avoid) the analytical
distinction between the two analys[es]." It was appropriate for
CSD to use its reply brief to clarify that distinction, the
relevance of which I will discuss infra. See United States
v. Bradstreet, 207 F.3d 76, 80 n.1 (1st Cir. 2000) ("While a reply
brief is not the proper place to raise new arguments, it is proper
for a court to look there for clarification.") (internal citations
omitted); see, e.g., Soto v. State Indus. Prods., Inc., 642 F.3d
67, 70 n.1 (1st Cir. 2011) (accepting arguments in the appellant's
reply brief for purpose of clarifying appellant's position);
Provencher v. CVS Pharmacy, 145 F.3d 5, 8 n.2 (1st Cir. 1998)
(same).

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judice, and it also formed the basis for this court's holding in

Kristian. In Paul Revere, the district court had applied the same

contractual doctrine relied upon here (the tenet of contra

proferentem for adhesion contracts) to conclude that an asserted

ambiguity in the arbitration clause at issue should be interpreted

against the drafters. Id. The parties whose motion for

arbitration had been denied below argued on appeal that the court

was required to resolve any doubts in favor of arbitration. Id.

The Paul Revere panel held that, because the alleged ambiguity went

to the arbitration agreement's existence, rather than its scope,

"[t]he federal preference for arbitration [did] not come into play

and, a fortiori, it [could not] undermine the lower court's

reliance on the contra proferentem tenet." Id. An essential

component to our holding in that case was the finding that the

question of ambiguity presented went to the validity of the

agreement to arbitrate, not its scope. See id. (determining

question whether a party has standing to compel arbitration

concerned "[the] right to arbitrate at all" and was, therefore,

"not a scope question"). Paul Revere clarified that, in contrast,

"[a] scope question arises 'when the parties have a contract that

provides for arbitration of some issues' and it is unclear whether

a specific dispute falls within that contract." Id. (quoting First

Options v. Kaplan, 514 U.S. 938, 945 (1995)).

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 Although CSD did not discuss the Paul Revere holding in

detail in its brief, it did refer us to First Sealord Surety, Inc.

v. TLT Construction Corp., 765 F. Supp. 2d 66 (D. Mass. 2010).

There, the U.S. District Court for the District of Massachusetts

briefly discusses the case's holding. The summary provided in

First Sealord, which CSD quoted in its brief, noted the

"distinction" that our circuit has drawn in this area, describing

it as follows: "[c]ontra pr[o]ferentem applies to questions such as

whether a 'party has entered an arbitration agreement or whether an

arbitration agreement is enforceable vel non,' but the presumption

in favor of arbitration applies to the resolution-of-scope

questions." Id. at 75 n.61 (quoting Paul Revere, 226 F.3d at 25)

(third emphasis added).

On this basis, CSD adequately brought before this court

the issue of whether or not the federal policy favoring arbitration

should be applied in the scope analysis to favor arbitrability,

vis-à-vis the tenet of contra proferentem for adhesion contracts.

I find sufficient that CSD highlighted the distinction drawn in our

case law between the court's analysis of an arbitration agreement's

validity as opposed to its scope. Despite the majority's refusal

to engage with it, this distinction was key to the Kristian holding

that now binds us, and generally to our preceding case law on how

to interpret ambiguities in arbitration clauses. See Kristian, 446

F.3d at 35 (applying "the general rule cited in Paul Revere" that

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"the presumption in favor of arbitration applies to the resolution

of scope questions") (quoting Paul Revere, 226 F.3d at 25). It is

therefore decisive to the question presented to us on appeal and

may be deemed "fairly included" therein. See, e.g., Jones v.

United States, 527 U.S. 373, 397 n.12 (1999) (refusing to consider

waived an argument not raised in opposition to a petition for writ

of certiorari, despite specific rule of the Court allowing finding

of waiver, where argument "was 'predicate to an intelligent

resolution of the question presented'" and indicating that "[i]n

those instances, [the Court has] treated the issue not raised in

opposition as fairly included within the question presented")

(quoting Ohio v. Robinette, 519 U.S. 33, 38 (1996)).

In sum, because all judges on this panel conclude that

Gove accepted and entered into a valid agreement to arbitrate some

of the disputes between herself and CSD, our precedent is clear

that Maine contract law cannot trump the federal policy favoring

arbitration in our assessment of CSD's motion to compel. See

Kristian, 446 F.3d at 35. Nor should we resort here to the

doctrine of waiver and avoid the obvious tension between our own

case law and the Maine Law Court's jurisprudence on the

applicability of the contra proferentem tenet in this context. For

these reasons, I dissent.

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