                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  June 19, 2014
                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court

 HUNGRY HORSE LLC, a New
 Mexico limited liability company,

              Plaintiff - Appellant,
                                                       No. 13-1425
 v.                                           (D.C. No. 1:12-CV-02974-REB)
                                                      (D. Colorado)
 E LIGHT ELECTRIC SERVICES,
 INC., a Colorado corporation,

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and McHUGH, Circuit Judges.



      This appeal arises out of the arbitration of a construction dispute between a

subcontractor, Hungry Horse LLC, and a prime contractor, E Light Electric

Services, Inc. (E Light). Hungry Horse claims the district court erred in denying

its motion to vacate the arbitration award because the arbitration panel exceeded

its authority. Exercising jurisdiction under 9 U.S.C. § 16(a)(3), we affirm.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
                                 BACKGROUND

      E Light engaged Hungry Horse to perform subcontractor duties on two

solar panel projects in New Mexico. Toward completion of the projects, a dispute

arose between the two regarding the amount Hungry Horse was owed for work

completed under the subcontract and for additional work. Hungry Horse filed

mechanic’s liens against the projects, claiming it was owed approximately $2.8

million.

I.    Mediation Proceedings

      The parties first attempted to resolve their dispute through mediation. As

part of that process, Hungry Horse and E Light each filed a written mediation

statement, outlining their positions on the proper interpretation of the contract,

the scope of the work performed, and the validity of the mechanic’s liens. Neither

party raised any issues with respect to Hungry Horse’s contractor’s license in its

written mediation statement. When the mediation failed, the parties stipulated to

submit their dispute to binding arbitration.

II.   Arbitration Proceedings

      Hungry Horse and E Light entered into an arbitration agreement that

provides:

      Pursuant to the statements made at the settlement conference held
      January 25, 2012, this is to confirm the Stipulation reached in the
      above-captioned case upon the following terms:




                                         -2-
      1.     The parties agree to binding arbitration of all disputed issues
             including the issues related to the Mechanics Lien and Bond . . . .

Aplt. App. 272. The parties further agreed the arbitration would be held in

Colorado but governed by New Mexico law pursuant to the forum selection and

choice of law provisions of their construction agreement.

      To recover in a suit for compensation in New Mexico, a contractor must

“alleg[e] and prov[e] that such contractor was a duly licensed contractor at the

time the alleged cause of action arose.” N.M. Stat. § 60-13-30(A); see also id.

§ 60-13-30(B) (stating that any contractor operating without a required license

“shall have no right to file or claim any mechanic’s lien”). Accordingly, Hungry

Horse’s statement of claims filed with the arbitration panel included an allegation

stating, “[Hungry Horse] is licensed to undertake the construction activities

required by the expressed and implied agreement between the parties to this

dispute.” Aplt. App. 147. In its initial answer to Hungry Horse’s statement of

claims, E Light indicated it lacked sufficient information to confirm, and

therefore denied, Hungry Horse’s allegation with respect to its license. It also

asserted affirmative defenses that Hungry Horse “failed to fulfill all conditions

precedent to its right to assert its mechanic’s liens” and that Hungry Horse’s

“mechanic’s liens are invalid and unenforceable under applicable law.” Aplt.

App. 161. After discovery, E Light filed a supplemental answer to Hungry




                                         -3-
Horse’s statement of claims in which it asserted as an affirmative defense that

Hungry Horse was not duly licensed (the duly licensed issue).

      During the arbitration proceedings, E Light argued Hungry Horse did not

have the correct license for the type of work performed and the license it did hold

never should have been issued. In support of the latter claim, E Light relied on

New Mexico’s requirement that no construction license be issued unless the

director of the New Mexico Construction Industries Division of the Regulations

and Licensing Department (Division) is satisfied that an applicant employs or is

owned by a qualifying party. N.M. Stat. § 60-13-14(A); N.M. Admin. Code R.

§ 14.6.3.8. Under New Mexico law, a “qualifying party” is a licensed individual

“who is responsible for the licensee’s compliance” with New Mexico construction

“regulations, codes, and standards.” N.M. Stat. § 60-13-2(E).

      In its license application, Hungry Horse had listed Mr. Stokes, a New

Mexico contractor, as its qualifying party. Although Mr. Stokes and a company he

owned had valid New Mexico contractor’s licenses, E Light claimed Mr. Stokes

had no involvement in the solar projects and was neither an owner nor employee

of Hungry Horse. At the arbitration hearing, E Light presented evidence that

Hungry Horse had paid Mr. Stokes’s company $1,500 to use his name on Hungry

Horse’s license application. E Light argued that under these facts, Hungry Horse

was not duly licensed and could not recover on its compensation claims.




                                         -4-
       Hungry Horse objected to any inquiry by the arbitration panel into whether

its construction license had been properly issued, arguing the panel was

empowered to consider only whether the license covered the type of work

performed. The arbitration panel disagreed and found Mr. Stokes had never been

an owner or employee of Hungry Horse. Because Hungry Horse was not owned

by and did not employ a qualifying party, the panel treated Hungry Horse as an

unlicensed contractor and denied its claims for unpaid construction work. The

panel did award Hungry Horse $350,000 for supplying materials to the solar panel

projects, a task which did not require a license.

III.   District Court Proceedings

       Hungry Horse filed an action to vacate the arbitration award, alleging the

arbitrators “exceeded their powers” in violation of the Federal Arbitration Act

(FAA), 9 U.S.C. § 10(a)(4). Hungry Horse argued the Division had the exclusive

jurisdiction to issue contractor licenses, thereby precluding the arbitration panel

from considering whether Hungry Horse’s license had been properly issued.

Hungry Horse also claimed the arbitration panel had revoked the license issued to

Hungry Horse and that only the New Mexico Construction Industries Commission

(Commission) had the power to do so.

       The district court denied Hungry Horse’s motion to vacate, concluding the

panel had acted within its broad authority. The district court explained the panel

properly decided whether Hungry Horse was duly licensed as part of its

                                          -5-
determination of whether Hungry Horse could recover additional compensation

from E Light. It further found the panel did not revoke Hungry Horse’s license,

but merely refused to treat Hungry Horse as duly licensed with respect to the

work performed on the solar panel projects. Accordingly, the district court

refused to vacate the arbitration award. Hungry Horse appeals.



                                  DISCUSSION

      When considering a district court’s decision on a motion to vacate an

arbitration award, we review the court’s conclusions of law de novo and its

findings of fact for clear error. Bowen v. Amoco Pipeline Co., 254 F.3d 925, 931

(10th Cir. 2001). Our review of the underlying arbitration award, however, is far

more limited. Id. We “‘give extreme deference’” to the decision of the arbitration

panel. Burlington Northern and Santa Fe Ry. Co. v. Public Service Co. of

Oklahoma, 636 F.3d 562, 567 (10th Cir. 2010) (quoting Brown v. Coleman Co.,

220 F.3d 1180, 1182 (10th Cir. 2000)). Indeed, this “highly deferential standard”

is one of the “narrowest known to the law.” Bowen, 254 F.3d at 932 (internal

quotation marks omitted). As a result, once an arbitration award has been entered,

it is not easily vacated. See Oxford Health Plans LLC v. Sutter, ___ U.S. ___, 133

S. Ct. 2064, 2068 (2013) (“Under the FAA, courts may vacate an arbitrator’s

decision ‘only in very unusual circumstances.’” (quoting First Options of

Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995))); see also Burlington, 636

                                        -6-
F.3d at 567; Bowen, 254 F.3d at 932. To hold otherwise would defeat arbitration’s

goal of speedy and final resolution of disputes and create a system in which

“arbitration would become ‘merely a prelude to a more cumbersome and time-

consuming judicial review process.’” Oxford Health Plans, 133 S. Ct. at 2068

(quoting Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576, 588 (2008)).

      Hungry Horse contends we should vacate the award under this narrow

standard of review because, “the arbitrators exceeded their powers, or so

imperfectly executed them that a mutual, final, and definite award upon the

subject matter submitted was not made.” 9 U.S.C. § 10(a)(4). 1 It claims the

arbitration panel lacked authority to consider whether Hungry Horse’s license was

properly issued and also exceeded its power by invading the exclusive jurisdiction

of the Commission and revoking Hungry Horse’s license.

I.    Arbitrability and Authority

      In considering the limits of an arbitration panel’s power, we apply different

standards of review to questions of arbitrability than to questions of the extent of

the panel’s authority in deciding arbitrable issues. See Burlington, 636 F.3d at

      1
        Section 10 of the FAA allows an arbitration award to be vacated if: (1)
“the award was procured by corruption, fraud, or undue means”; (2) “there was
evident partiality or corruption in the arbitrators”; (3) the “arbitrators were guilty
of misconduct in refusing to postpone the hearing, upon sufficient cause shown,
or in refusing to hear evidence pertinent and material to the controversy; or of any
other misbehavior by which the rights of any party have been prejudiced”; or (4)
“the arbitrators exceeded their powers, or so imperfectly executed them that a
mutual, final, and definite award upon the subject matter submitted was not
made.” 9 U.S.C. § 10(a). Hungry Horse relies only on subsection 10(a)(4).

                                         -7-
567–68. The Supreme Court has explained that the initial question of whether the

parties “agreed to arbitrate the merits” of their dispute is “about the arbitrability

of the dispute,” which turns on the scope of the arbitration agreement. See First

Options, 514 U.S. at 942 (emphasis in original). Unless the parties have expressly

agreed to submit the question of arbitrability to the arbitration panel, the court

must independently decide that preliminary question based on ordinary principles

of state contract formation law. See id. at 943–44. In determining whether the

particular issue is arbitrable, the district court should resolve any doubts about the

scope of the arbitration agreement in favor of arbitration. See Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). We review a

district court’s arbitrability decision concerning the scope of the arbitrable issues

de novo. First Options, 514 U.S. at 941, 947–49 (approving the circuit court’s de

novo review of the arbitrability question).

      Once the court determines that the parties agreed to submit an issue to

arbitration, we afford the arbitration panel “extreme deference” regarding the

extent of its authority to decide the arbitrable issue. See Burlington, 636 F.3d at

568 (citing Schoenduve Corp. v. Lucent Techs., Inc., 442 F.3d 727, 733 (9th Cir.

2006); Major League Umpires Ass’n v. American League of Prof’l Baseball

Clubs, 357 F.3d 272, 279 (3d Cir. 2004)). We have referred to this second

question as an inquiry into the “scope of the [arbitration panel’s] authority,”




                                          -8-
because it focuses on the permissible extent of the arbitration panel’s inquiry

when deciding the arbitrable issue. Burlington, 636 F.3d at 569.

      If an issue is arbitrable and the arbitration panel renders a decision on the

merits, the circumstances under which the award can be set aside as exceeding the

arbitrator’s powers are quite limited. See Oxford Health Plans, 133 S. Ct. at 2068.

“Only if the arbitrator acts outside the scope of his contractually delegated

authority—issuing an award that simply reflects his own notions of economic

justice rather than drawing its essence from the contract—may a court overturn

his determination.” Id. at 2068 (brackets and internal quotation marks omitted);

see also Local No. 7 United Food & Commercial Workers Int’l Union v. King

Soopers, Inc., 222 F.3d 1223, 1226–27 (10th Cir. 2000).

II.   Nature of this Dispute

      A.     Arbitrability: Scope of the Arbitration Agreement

      Hungry Horse admits in its reply brief on appeal it “never contested the

authority of the Panel to determine if [it] was duly licensed,” and it “was required

to prove [it] was ‘duly licensed’” to recover on its claims for additional

compensation. Aplt. Reply Br. 12. Thus, there is no dispute the duly licensed

issue was arbitrable. Likewise, our independent analysis of whether the duly

licensed question falls within the scope of the parties’ arbitration agreement is

consistent with Hungry Horse’s concession. See Burlington, 636 F.3d at 569–70

& n.3 (finding the appellant conceded it “expressly agreed to allow the arbitration

                                         -9-
board to consider the rate floor issue,” but proceeding to consider the language of

the arbitration agreement independently of that concession).

      Whether a dispute falls within the scope of an agreement’s arbitration

clause is determined by first “‘classify[ing] the particular clause as either broad

or narrow.’” Cummings v. FedEx Ground Package Sys., Inc., 404 F.3d 1258, 1261

(10th Cir. 2005) (quoting Louis Dreyfus Negoce SA v. Blystad Shipping &

Trading, Inc., 252 F.3d 218, 224 (2d Cir. 2001)); see also Burlington, 636 F.3d at

569. If the clause is narrow, we must “determine whether the dispute is over an

issue that is on its face within the purview of the clause, or over a collateral issue

that is somehow connected to the main agreement that contains the arbitration

clause.” Cummings, 404 F.3d at 1261 (internal quotation marks omitted). Where

the clause in the parties’ agreement is narrow, “a collateral matter will generally

be ruled beyond its purview.” Id. (emphasis omitted) (internal quotation marks

omitted). In contrast, where the arbitration clause is broad, “there arises a

presumption of arbitrability and arbitration of even a collateral matter will be

ordered if the claim alleged implicates issues of contract construction or the

parties’ rights and obligations under it.” Id. (internal quotation marks omitted).

      “To determine the breadth of an arbitration clause, we ask if the parties

clearly manifested an intent to narrowly limit arbitration to specific disputes that

might arise between them.” Chelsea Family Pharm., PLLC v. Medco Health

Solutions, Inc., 567 F.3d 1191, 1196 (10th Cir. 2009). Agreements using language

                                          -10-
like “disputes of any nature or character” or “any and all disputes” have been held

to be broad. McDonnell Douglas Finance Corp. v. Pa. Power & Light Co., 858

F.2d 825, 832 (2d Cir. 1988) (internal quotation marks omitted); 2 see also

Newmont U.S.A. Ltd. v. Insurance Co. of North America, 615 F.3d 1268, 1274–75

& n.5 (10th Cir. 2010) (stating the phrase “arising out of” a contract is generally

construed broadly (internal quotation marks omitted)); Rochdale Village, Inc. v.

Public Service Employees Union, Local No. 80, 605 F.2d 1290, 1295 (2d Cir.

1979).

         Hungry Horse and E Light agreed to “binding arbitration of all disputed

issues including the issues related to the Mechanics Lien and Bond.” We agree

with E Light that this is a broad arbitration provision. It broadly refers to “all

disputed issues,” listing two specific examples, the mechanic’s lien and bond, but

does not expressly indicate that no issues other than those specifically identified

are subject to arbitration. Cf. Burlington, 636 F.3d at 566 (involving an agreement

that the arbitration board “shall not consider any claims . . . other than [that]

referenced in (a) above”); Cummings, 404 F.3d at 1260, 1262 (involving an




         2
       Because we adopted our scope-of-agreement test from the Second Circuit,
see Cummings v. FedEx Ground Package System, Inc., 404 F.3d 1258, 1261 (10th
Cir. 2005) (quoting Louis Dreyfus Negoce SA v. Blystad Shipping & Trading, Inc.,
252 F.3d 218, 224 (2d Cir. 2001)), we consider Second Circuit opinions
particularly helpful in applying the test. Chelsea Family Pharm., PLLC v. Medco
Health Solutions, Inc., 567 F.3d 1191, 1198 n.8 (10th Cir. 2009).

                                         -11-
agreement stating that “each such disagreement (but no others) shall be settled by

arbitration”).

      Hungry Horse relies on the arbitration agreement’s inclusion of the phrase,

“[p]ursuant to the statements made at the settlement conference,” to argue the

issues submitted to the arbitration panel were limited to those discussed at

mediation. Aplt. Br. 17–18. We need not consider this argument because Hungry

Horse did not raise it until its reply brief below and the district court did not

address it. See FDIC v. Noel, 177 F.3d 911, 915–16 (10th Cir. 1999) (holding that

arguments first raised in reply are waived when not addressed by the district

court). Even if we were inclined to consider the merits of Hungry Horse’s

argument, it would be unavailing.

      The introductory language of the arbitration clause indicates only that the

parties reached an agreement at the settlement conference to arbitrate; the issues

they agreed to arbitrate are identified in the plain language that follows. See First

Options, 514 U.S. at 943–44 (arbitrability is to be determined by ordinary

principles of state contract law); ConocoPhillips Co. v. Lyons, 2013-NMSC-009,

¶ 23, 299 P.3d 844 (“The purpose, meaning[,] and intent of the parties to a

contract is to be deduced from the language employed by them; and where such

language is not ambiguous, it is conclusive.” (internal quotation marks omitted));

see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,

24–25 (1983) (“[A]ny doubts concerning the scope of arbitrable issues should be

                                          -12-
resolved in favor of arbitration.”). That language submits any disputed issues to

the arbitration panel and expressly indicates such issues include those “related to

the Mechanics Lien.”

      As discussed, in New Mexico, a contractor may not recover on a

compensation claim unless it proves it was duly licensed at the time the work was

performed. See N.M. Stat. § 60-13-30(A). During the arbitration proceedings, E

Light disputed Hungry Horse’s claim it was duly licensed and placed that issue

squarely before the panel. Thus, the duly licensed issue is a disputed issue and

“on its face within the purview of the [arbitration] clause.” Cummings, 404 F.3d

at 1261 (internal quotation marks omitted).

      Even if the duly licensed issue were collateral, it would be arbitrable.

Given the broad language of the arbitration clause, we presume collateral matters

implicating issues of contract construction or the parties’ rights and obligations

under the subcontract fall within the scope of the arbitration agreement.

Burlington, 636 F.3d at 569. “[A] collateral issue . . . is somehow connected to

the main agreement that contains the arbitration clause.” Burlington, 636 F.3d at

569. The duly licensed issue is somehow connected to the arbitration agreement

because Hungry Horse needed to prove it was duly licensed as an element of its

claim for compensation. See N.M. Stat. § 60-13-30. Similarly, Hungry Horse’s

rights and E Light’s obligations under the construction contract are implicated

because Hungry Horse cannot recover on its mechanic’s lien claims without

                                         -13-
proving it is duly licensed. The arbitration panel, therefore, had the authority to

decide the question. See Louis Dreyfus Negoce, 252 F.3d at 228–29 (holding

collateral agreements—letters of indemnity—were within the scope of a broad

arbitration clause in a contract because the matter of indemnity implicated clauses

in the contract).

      Whether we resolve the arbitrability question based on Hungry Horse’s

concession or by construction of the arbitration agreement’s broad arbitration

provision, we reach the conclusion the duly licensed issue was arbitrable.

      B.     Authority: Scope of the Arbitration Panel’s Inquiry

      In characterizing the issue on appeal, Hungry Horse states the parties have

a “fundamental disagreement as to what one must prove to meet its burden of

establishing the contractor is ‘duly licensed.’” Aplt. Reply Br. 12. Accordingly,

the issue before us is whether the arbitration panel had the authority to consider

the circumstances under which Hungry Horse obtained its license in determining

whether it was duly licensed when it performed work on the solar panel projects.

Although Hungry Horse frames this dispute as a question of arbitrability, we are

convinced it is a question of the proper extent of the panel’s authority to decide

the “duly licensed” issue Hungry Horse admits was submitted to arbitration. See

Burlington, 636 F.3d at 568 (rejecting a party’s “attempts to garner a more

favorable standard of review by masquerading its scope of authority claims as an

arbitrability claim”). In this circuit, the arbitration panel is entitled to extreme

                                          -14-
deference in setting the bounds of its authority to decide an issue submitted to

arbitration. Id.

       For example, in Burlington, the Public Service Company of Oklahoma

(PSO) and Burlington Northern and Santa Fe Railway Company (BNSF)

disagreed on the proper interpretation of the rate provisions governing the amount

due to BNSF under a coal transportation agreement. PSO calculated the rate using

an amended rate adjustment procedure agreed to in connection with the resolution

of a prior dispute. Id. at 566. BNSF sought a higher amount based on a “rate

floor” of $11.77 per ton included in the pre-amendment agreement. Id.

Eventually, the parties asked an arbitration board to adjudicate: 1) BNSF’s claim

the rate could not be less than $11.77 per ton; and 2) all of PSO’s defenses to

BNSF’s claim. The arbitration agreement further provided the arbitration board

“shall not consider any [other] claims by BNSF and PSO.” See id. The arbitration

board issued an award holding the rate floor in the pre-amendment agreement had

been extinguished when the parties adopted the amended rate adjustment

procedure. Id. at 566–67. BNSF brought a motion to vacate the award in the

district court, claiming the arbitration board had exceeded its powers by

interpreting the rate floor provision of the prior contract. Id. at 567. The district

court denied the motion to vacate. Id.

       This court affirmed. We first rejected BNSF’s attempt to characterize the

question on appeal as one of arbitrability. Id. at 568. Because BNSF’s claims and

                                          -15-
PSO’s defenses were arbitrable, we held, “the board’s determination that it had

the authority to declare no rate floor provision existed is entitled to the same

‘extreme deference’ as its determinations on the merits.” Id.; see also id. at 569

(“After the district court independently concluded the parties’ rate dispute was

arbitrable, it correctly applied a deferential standard of review to the board’s

determination of the scope of its authority.”).

      The same level of deference is appropriate here. The parties agree the duly

licensed issue was arbitrable. Thus, the arbitration panel’s implicit “determination

that it had the authority to declare” no license should have been issued to Hungry

Horse is entitled to “extreme deference.” See id. at 568. Under that standard, we

cannot say the panel exceeded its powers by considering the circumstances under

which Hungry Horse obtained its contractor’s license.

      C.     Correctness of the Arbitration Panel’s Decision

      Finally, Hungry Horse argues the arbitration panel exceeded its powers

because the Division and the Commission have exclusive jurisdiction to issue

licenses in the first instance and to review or revoke licensing decisions. Aplt. Br.

19–20 (citing N.M. Stat. §§ 60-13-12, -14, -15, -30). In particular, Hungry Horse

claims the arbitration panel’s decision is contrary to New Mexico’s statutory

scheme and the legal decisions addressing the duly licensed requirement in the

context of contractor claims. This challenge is appropriately considered an attack




                                         -16-
on the merits of the arbitration panel’s decision that Hungry Horse was not duly

licensed when it performed the work on the solar projects.

      In such circumstances, Hungry Horse “bears a heavy burden” in seeking

relief under section 10(a)(4) of the FAA. See Oxford Health Plans, 133 S. Ct. at

2068. “It is not enough . . . to show that the [arbitrator] committed an error—or

even a serious error.” Id. (alteration and omission in original); see also

Burlington, 636 F.3d at 568 (holding the arbitrator’s determination of the extent

of the inquiry is entitled to the same extreme deference as the arbitrator’s merits

decision). Section 10(a)(4) “permits courts to vacate an arbitral decision only

when the arbitrator strayed from his delegated task . . . , not when he performed

that task poorly.” Oxford Health Plans, 133 S. Ct. at 2070; see also Stolt–Nielsen

SA v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671–72 (2010). Because the panel

was “arguably” addressing the duly licensed issue—and not dispensing its own

brand of justice—when it determined Hungry Horse’s license should not have

been issued, its decision must stand regardless of our view of the merits. See

Oxford Health Plans, 133 S. Ct. at 2068; cf. Wells Fargo Bank, NA v. WMR e-

PIN, LLC, 653 F.3d 702 (8th Cir. 2011) (holding where the parties submitted

issue of misappropriation of trade secrets to arbitration and argued inventorship in

their arbitration briefs, the panel could consider the issue of inventorship despite

the fact inventorship decisions are reserved exclusively to the United States

Patent and Trademark Office).

                                         -17-
                                  CONCLUSION

      Because the duly licensed issue was arbitrable, we afford extreme

deference to the panel’s determination of the proper extent of the inquiry

necessary to decide that question and to its decision on the merits. Hungry Horse

has not demonstrated that the district court erred in refusing to vacate the

arbitration award.

      AFFIRMED.

                                               ENTERED FOR THE COURT



                                               Carolyn B. McHugh
                                               Circuit Judge




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