Federal Court Case Update | Filings and Firings

Richard Birke

Richard Birke

By Richard Birke

Following is the start of a new series on the JAMS ADR Blog, featuring short synopses of recent case rulings related to arbitration or ADR. We’re excited to share this information as we know this is an area that will be of interest to our readers and those in the legal industry.

Mailing Equals Filing for Purposes of Determining Whether Arbitration Initiated in Timely Fashion
Garcia v. Dept. of Homeland Security
United States Court of Appeals, Federal Circuit

Alberto Garcia was dismissed from his job with Homeland Security for alleged misconduct. 28 days later, his union mailed a letter to the agency requesting arbitration. The agency received the letter seven days later.  The agency moved to dismiss the dispute for failure to follow the requirements of the collective bargaining agreement, which stated that requests for arbitration “must be filed … not later than 30 calendar days after the effective date of the action.” The arbitrator sided with the agency and Garcia appealed.

The United States Court of Appeal for the Federal Circuit analyzed the meaning of the word “filed” and found that in this context,  “the definition of ‘filed’ should be construed [to mean that] a document is filed at the time of mailing.” The Court concluded that “the requirement in Article 34, Section A that a request for arbitration must be filed … not later than thirty (30) calendar days after the effective date of [the Agency’s] action is satisfied when the request is mailed before the thirty-day deadline…Accordingly, we reverse the Arbitrator’s dismissal for failure to timely file a request for arbitration and remand for further proceedings.”

Subsequent Firing Does Not Conflict with Arbitral Award Requiring Reinstatement
Fraternal Order of Police (Metro Transit Police Labor Committee) v. Washington Metro Area Transit Authority
United States Court of Appeals, Fourth Circuit

The Fraternal Order of Police signed a collective bargaining agreement with a compact of jurisdictions associated with the metro D.C. transit system.  Two of the officers were terminated (for punching a passenger, lying under oath, sexually harassing a colleague and more).  After arbitration, they were reinstated.

The transit system rehired them and put them on paid leave while they applied for reinstatement as police officers. When the Maryland police authorities declined to reinstate the two, the transit system fired them because, without certification, they were ineligible to continue as transit officers.

FOP sued, arguing that transit failed to follow the arbitrator’s award. The trial judge agreed and ordered the pair reinstated. The judge denied transit’s motion for reconsideration and transit appealed.

The United States Court of Appeals for the Fourth Circuit reversed. It agreed with transit that the proper course of action for the aggrieved officers was to grieve and then arbitrate the second termination, not to file the instant action. Because transit rehired the pair until they were fired for an independent (if not unrelated) reason, transit had complied with the award.

 

First Things First: Design the Arbitration Process You Want

Richard Chernick, Esq.

Richard Chernick, Esq.

By Richard Chernick, Esq.

The principles for drafting a pre-dispute arbitration clause are straightforward.  They do require an understanding of the legal relationship, which will be the subject of the clause, some sense of the nature of disputes that are likely to arise and a basic understanding of arbitration process.

Following are the top 10 rules:

  1. Identify the scope of arbitration with precision.  The gold standard is “all disputes arising out of or relating to this Agreement . . .” This is a “broad form” clause that is invariably interpreted by courts to encompass related tort and statutory claims.  Anything less may limit the arbitrators’ power to determining only contractual disputes.
  2. Decide whether determining arbitrability shall be delegated to the arbitrators or left with the court.  Typical delegation language:  “any controversy, claim or dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate…”  Courts will enforce such delegations.
  3. State who will administer the arbitration.  “The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.”   If neither an institution nor institutional rules are mentioned, the arbitration will be non-administered (ad hoc).
  4.  Choose rules to govern the arbitration in the case of a non-administered clause:  “The arbitration shall be governed by the UNCITRAL Rules.”
  5.  Decide between a sole arbitrator and a tripartite panel and specify the method of selection of the arbitrator(s), mindful of the default process contained in the designated rules in the event of a failure to agree: “Each party shall select an arbitrator (who shall serve as a neutral arbitrator as that term is used in the Revised Code of Ethics for Arbitrators in Commercial Disputes); the party-appointed arbitrators shall jointly select the presiding arbitrator.”
  6.  Specify the governing (substantive) law: “shall be determined by arbitration in Los Angeles, California, in accordance with the laws of the State of California for agreements made in and to be performed in California.”
  7.  Address the scope of discovery unless the (default) rules are acceptable to the parties.
  8.  Choose a venue for the arbitration:  “shall be determined by arbitration in Los Angeles, California…”

For more on Mr. Chernick’s discussion on designing the arbitration process, please read the full article from Law.com.

Eight Tips on How to Impress Your Arbitrator

Hon. Richard A. Levie (Ret.)

Hon. Richard A. Levie (Ret.)

by Hon. Richard A. Levie (Ret.)

While the most successful way to impress your arbitrator is with the merits of your case, there are smaller, but important, ways to create a favorable impression of yourself and your client’s case.  Below is one arbitrator’s guide to creating an arbitral environment favorable to you and your client.  These tips are presented with the important caveat that they represent only one person’s list, based on 30 years of judging and arbitration.

  1. Do not email your adversary with negative, insulting and arguably inflammatory comments about counsel and your opponent’s case, and send copies of these emails to the arbitrator.  While arbitrators likely know that communications between counsel may take on a different tone than communications shared with the arbitrator or comments made in the hearing room, sending such emails to the arbitrator will create a very definite impression of counsel in his or her mind.  Sharing communications with the arbitrator is not likely to sway the arbitrator to the correctness of the author’s position more effectively than a carefully crafted, non-confrontational explanation of the client’s position.
  2. When serving motions and filing briefs with the arbitrator, avoid using sarcasm and hyperbole to make your points.  Instead, assume that the arbitrator will read your submissions and conclude that the positions you advance are compelling and deserving of favorable results.
  3. Do not serve a motion for summary disposition when it is clear that the matter involves a disputed material issue of fact.  Where permitted by the rules of the administering arbitral body or agreement of the parties, a motion for summary disposition may be very effective in narrowing issues and educating the arbitrator on the issues.  Before serving such a motion, however, consider what reaction the arbitrator may have to the motion.  Ask yourself whether the arbitrator will view the motion as one that advances the arbitral goals of efficiency and cost-savings or one that was served for less lofty reasons.

To see the rest of Richard Levie’s eight tips on impressing your arbitrator, please read the full article from Law.com.

The Promise and Perils of “Med-Arb”

Maria Walsh

Maria Walsh

By Maria C. Walsh

When disputing parties tire of mediation (because it is too “weak”) or fear arbitration (because it is too “controlling”), they seek an Alternative Dispute Resolution solution that is “just right.”  Recently, I’ve heard a number of highly talented negotiators, and one famous law school, endorse med-arb as the best of all ADR worlds.  The advantages, however, come with caveats.

Through mediation, parties in conflict negotiate a dispute settlement with the assistance of a neutral mediator.  The materials, design, and strength of the deal all belong to the disputants.  If they can’t agree, the deal collapses.  Each party’s attraction to controlling the settlement terms through negotiation is tempered by the frustration that each lacks power to unilaterally impose a solution.  Sometimes mediation doesn’t feel sufficiently “muscular.”

In contrast, arbitration delivers closure because the parties give an impartial arbitrator authority to impose a decision.  The arbitrator decides the facts, judges the parties’ legal rights, and dictates the result.  Med-arb, as the name indicates, is a hybrid, sometimes proposed as a cure for a failed mediation.  Frustrated, tired of spending money, time, and effort in negotiation, parties want closure and may ask the mediator to provide a binding decision.  The neutral mediator who has weighed all the accusations and defenses, debated the various proposed solutions, and earned the trust of all parties during the mediation process, seems the perfect candidate to adjudicate the remaining irreconcilable differences between the parties.  Med-arb may be the perfect solution; but counsel considering med-arb should think about the following:

To continue reading Maria C. Walsh’s discussion on The Promise and Perils of “Med-Arb,” please read the full article from Law.com by clicking here.