Dairy product as metaphor.
The First Circuit, diligently working on New Year's Eve, issued an opinion that allowed an arbitrator to change his award. It held that the doctrine of functus officio — Latin for "having performed his office" — didn't bar the arbitrator from revisiting and altering his on-its-face complete award. Eastern Seaboard Construction Co., Inc. v. Gray Construction, Inc., No. 08-1679 (1st Cir. Dec. 31, 2008).
Gray Construction won a contract for building something at the Portsmouth Naval Shipyard in Kittery, Maine. Gray hired Eastern Seaboard to do the site work. The Navy refused to pay Gray for extra costs, and Gray in turn stiffed Eastern. The dispute went to arbitration before a single American Arbitration Association arbitrator, who awarded Gray $77,000 on its counterclaim but forgot to address Eastern's entitlement to $66,613.89 under the base contract. The arbitrator later amended the award to grant the $66,613.89 offset to Eastern. The district court rejected Eastern's motion to confirm the post-amendment award.
The First Circuit reversed. It noted that plenty of exceptions apply to functus officio. AAA Rule 47 permitted corrections to "any clerical, typographical, technical or computational errors in the award." The arbitrator stated that Gray didn't seriously dispute the $66,613.89 claim. And that, the court concluded, put the amendment within the arbitrator's authority and, because plausible, immunized it from judicial second-guessing.
Blawgletter has a couple of observations. First, we wonder what functus officio has to do with an arbitrator's decision to amend an award on an apparently timely request under AAA Rule 47. How could the arbitrator's performance of his or her office have ended before ruling on a live motion? Second, the opinion sheds little light on the scope of the functus officio doctrine beyond suggesting that it resembles Swiss cheese. May a court send an award back to an arbitrator for reconsideration? If so, under what circumstances? And how far may the arbitrator then go in altering the award?
