B.L. Harbert International, LLC v. Hercules Steel Co.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-11153 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ February 28, 2006
THOMAS K. KAHN
D. C. Docket No. 04-03255-CV-HS-S CLERK

B.L. HARBERT INTERNATIONAL, LLC,

Plaintiff-Appellant,

versus

HERCULES STEEL COMPANY,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(February 28, 2006)

Before ANDERSON, BLACK and CARNES, Circuit Judges.

CARNES, Circuit Judge:
 The Federal Arbitration Act (FAA) liberally endorses and encourages

arbitration as an alternative to litigation. Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941 (1983); Caley v. Gulfstream

Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir. 2005); Hill v. Rent-A-Ctr., Inc.,

398 F.3d 1286, 1288 (11th Cir. 2005). The reasons for this strong, pro-arbitration

policy are “to relieve congestion in the courts and to provide parties with an

alternative method for dispute resolution that is speedier and less costly than

litigation.” Caley, 428 F.3d at 1367 (quoting Indus. Risk Insurers v. M.A.N.

Gutehoffnungshutte GmbH, 141 F.3d 1434, 1440 (11th Cir. 1998)) (internal

quotation marks omitted)); see also Circuit City Stores, Inc. v. Adams, 532 U.S.

105, 125 n.2, 121 S. Ct. 1302, 1314 n.2 (2001) (“It was needed to ‘enable business

men to settle their disputes expeditiously and economically, and will reduce the

congestion in the Federal and State courts.’”) (emphasis omitted) (quoting Hearing

on S. 4213 and S. 4214 Before a Subcomm. of the Senate Comm. on the Judiciary,

67th Cong., 4th Sess., 2 (1923)); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.

265, 280, 115 S. Ct. 834, 842–43 (1995) (“[T]he Act, by avoiding the delay and

expense of litigation, will appeal to big business and little business alike, . . .

corporate interests [and] . . . individuals.”) (quoting S. Rep. No. 68–536, at 3

(1924) (internal quotation marks omitted and first alteration added).

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 The laudatory goals of the FAA will be achieved only to the extent that

courts ensure arbitration is an alternative to litigation, not an additional layer in a

protracted contest. If we permit parties who lose in arbitration to freely relitigate

their cases in court, arbitration will do nothing to reduce congestion in the judicial

system; dispute resolution will be slower instead of faster; and reaching a final

decision will cost more instead of less. This case is a good example of the poor

loser problem and it provides us with an opportunity to discuss a potential

solution.

I.

B.L. Harbert International, LLC, is a Delaware corporation based in

Birmingham, Alabama, which makes money in large construction projects

including some done for the government. Hercules Steel Company is a North

Carolina corporation based in Fayetteville, North Carolina, that manufactures steel

used in construction.

On August 25, 2000, the United States Army Corp of Engineers, Savannah

District, awarded Harbert a contract to construct an office complex for the Special

Operations Forces at Fort Bragg, North Carolina. Harbert, in turn, awarded

Hercules a $1,197,000 steel fabrication and erection subcontract on September 21,

2000.

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 The subcontract between the parties includes a provision that disputes

between them will be submitted to binding arbitration under the auspices of the

American Arbitration Association, using the Construction Industry Arbitration

Rules. Later, the parties executed a separate Agreement to Arbitrate, which

recognizes that the Federal Arbitration Act, 9 U.S.C. § 1, would control arbitration

proceedings.

The subcontract further provides that Harbert will issue a “Progress

Schedule” for the project and will provide a copy to each subcontractor. It states

that the subcontractor must perform all work “in accordance with Progress

Schedule as prepared by [Harbert] and as it may be revised from time to time with

the Subcontractor’s input.” The subcontract also provides that the subcontractor is

liable for damages caused by its failure to complete its work within the time

provided in the “Project Schedule.” The terms “Progress Schedule” and “Project

Schedule” are not defined.

Harbert’s failure to define those terms might have gone unnoticed if it had

created only one schedule for the project, but Harbert developed two, which it

referred to as the 2000 and 3000 schedules. Harbert claims that it created the 3000

schedule to update the Corps of Engineers about the progress of the project, and

the 2000 schedule to manage the work of its subcontractors, including Hercules.

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In any event, neither schedule is mentioned in the subcontract.

The dispute-generating problem is that the 2000 schedule contained earlier

completion dates than the 3000 one. According to the 2000 schedule, Hercules

was to begin work on March 5, 2001, and finish it by June 6, 2001. That did not

happen. Hercules began work in April of 2001, and did not finish it until January

of 2002. That completion of the work was, however, within the more lenient

deadlines of the 3000 schedule.

Dissatisfied with the timeliness of Hercules’ work, Harbert stopped making

payments to Hercules and demanded that it pay delay damages exceeding the

amount due Hercules on the subcontract. In response, on January 21, 2003,

Hercules filed a demand for arbitration with the American Arbitration Association,

seeking to recover the balance due on the subcontract, other damages, interest, and

attorney’s fees. Harbert counterclaimed for delay damages, acceleration costs,

miscellaneous back charges, interest, and attorney’s fees.

The arbitration proceedings took place on seven days in February and May

2004.1 As is customary in construction industry arbitrations, the parties decided

1
The parties selected the Honorable Frank H. McFadden as arbitrator. Judge McFadden served
as a judge in the United States District Court for the Northern District of Alabama from 1969 to 1982,
acting as Chief Judge for the last nine years of his tenure. He then served as general counsel for one of
Alabama’s largest construction companies from 1982 to 1995.

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not to have a court reporter take down the proceedings. We can, however, tell

from the parties’ briefs and statements during oral argument in this Court what

their principal positions and arguments were in those proceedings.

We know that the main disagreement of the parties was about which of the

two progress schedules that Harbert issued applied to Hercules. Hercules took the

position that the only one that applied to it was the 3000 Schedule, whose

deadlines it had met. The several arguments Hercules made in support of this

position included one that the subcontract language was ambiguous because it

referred to both a “Progress Schedule” and “Project Schedule,” but did not define

either term. Hercules argued that the subcontract provisions had to be interpreted

in light of an implied element of reasonableness. It also argued that Harbert had

abandoned the 2000 schedule thereby authorizing Hercules to perform in

accordance with the 3000 Schedule. Additionally, Hercules presented evidence

that it did not have notice of the 2000 Schedule at the time it began work on the

project.

Harbert, on the other hand, contended that the subcontract language

unambiguously gave it complete authority to set the schedule which would mean

that Hercules was bound by the 2000 schedule. Harbert asserted that the 2000

schedule was the “Progress Schedule” referred to in the subcontract because it was

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the only schedule Harbert issued to all of its subcontractors.

After considering the parties’ opposing arguments and a voluminous record,

the arbitrator issued his “Award of Arbitrator” on September 8, 2004. That award

denied Hercules’ delay damages claim, denied all of Harbert’s counterclaims,

denied both parties’ claims for attorney’s fees, and awarded Hercules $369,775,

representing the subcontract balance and the interest on that sum. Because the

award, not counting interest, was nearly $100,000 less than the amount the parties

had agreed was the subcontract balance, Hercules believed that the arbitrator had

made a scrivener’s or mathematical error. It submitted a request for clarification

which pointed out the problem.

Harbert moved for clarification and modification of the award but on

different grounds. Harbert’s motion pointed out that the award did not contain the

specificity the parties had agreed they needed, and it requested that the arbitrator

modify it to provide “enough discussion” on each of the six “Issues for Decision”

that had been identified by the parties to enable them to understand the result and

the arbitrator’s reasons for granting or denying any specific item of damages. The

first of those six issues was: “What was the schedule to which Hercules was

bound under its subcontract with Harbert?”

On October 18, 2004, the arbitrator issued his “Disposition for Application

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of Modification/Clarification of the Award,” a decision document which corrected

the scrivener’s error by increasing the award from $369,775 to $469,775. The

document also revealed the arbitrator’s findings on the six issues, stating in

answer to the first one that Hercules was contractually bound to the more generous

“project schedule submitted to the Corps of Engineers which was used to build the

project [the 3000 schedule] . . . not the sixteen week schedule unilaterally set by

Harbert [the 2000 schedule].” The arbitrator stated in answer to another of the six

issues that Harbert was not entitled to any damages because “[t]he delay and

acceleration damages are necessarily dependent on the claimed project schedule

which has been found not applicable.”

On November 18, 2004, Harbert filed in the district court a motion to vacate

the arbitration award, contending that the arbitrator’s rationale reflected a manifest

disregard of the applicable law. Hercules opposed Harbert’s motion with one of

its own, asking the court to confirm the award pursuant to 9 U.S.C. § 9.

On February 7, 2005, the district court entered an order denying Harbert’s

motion to vacate the award and granting Hercules’ motion to confirm it. While

there was no transcript of the arbitration hearing, the district court had before it the

pre- and post-hearing briefs that both parties had submitted to the arbitrator, and

an affidavit from Harbert’s lead attorney during the arbitration proceeding. (A

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copy of that affidavit is not in the record on appeal, and Harbert has made no

effort to inform us of its contents.)

The district court interpreted the arbitrator’s award and his disposition of

Harbert’s post-award motion as concluding that the reason Hercules’ conduct did

not breach the subcontract is that it was bound by the 3000 schedule not the 2000

schedule. The court noted that the arbitrator had before him evidence of the 2000

schedule and some evidence that it had been sent to Hercules before the

subcontract was signed. Finding no evidence of manifest disregard for the law,

the court on that basis distinguished this case from Montes v. Shearson Lehman

Bros., Inc., 128 F.3d 1456, 1461 (11th Cir. 1997). As a result, the court entered

judgment enforcing the arbitration award.

Unhappy with the district court’s judgment, as it had been with the

arbitrator’s decision, Harbert filed a notice of appeal and a motion for stay of the

judgment pending appeal. The district court granted the stay, and we now decide

the appeal.

II.

Judicial review of commercial arbitration awards is narrowly limited under

the Federal Arbitration Act. See 9 U.S.C. § 10–11. The FAA presumes the

confirmation of arbitration awards, see Davis v. Prudential Sec., Inc., 59 F.3d

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1186, 1190 (11th Cir. 1995); Lifecare Int’l, Inc. v. CD Med., Inc., 68 F.3d 429,

433 (11th Cir. 1995), and federal courts should defer to an arbitrator’s decision

whenever possible, Robbins v. Day, 954 F.2d 679, 682 (11th Cir. 1992). The FAA

sets out four narrow bases for vacating an award, none of which are even remotely

applicable in this case.2

In addition to those four statutory grounds for vacatur, we have said that

there are three non-statutory grounds. An award may be vacated if it is arbitrary

and capricious, Ainsworth v. Skurnick, 960 F.2d 939, 941 (11th Cir. 1992), if

enforcement of the award is contrary to public policy, Delta Air Lines, Inc., v. Air

Line Pilots Ass’n, Int’l, 861 F.2d 665, 671 (11th Cir. 1988), or if the award was

made in manifest disregard for the law, Montes, 128 F.3d at 1464.

Harbert’s challenge to the arbitrator’s award rests solely on its contention

2
The four statutory grounds for vacating an arbitration decision are:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of
them;
(3) where 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 may have been prejudiced; or
(4) where 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).

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that the arbitrator acted in manifest disregard of the law. This ground for vacating

an arbitration award requires clear evidence that the arbitrator was “conscious of

the law and deliberately ignore[d] it.” Montes, 128 F.3d at 1461. A showing that

the arbitrator merely misinterpreted, misstated, or misapplied the law is

insufficient. Id. at 1461–62. We review de novo the district court’s legal

conclusions on this issue. Peebles v. Merrill Lynch, Pierce, Fenner & Smith Inc.,

431 F.3d 1320, 1324 (11th Cir. 2005).

This Court first adopted manifest disregard for the law as a basis for

challenging an arbitration award in the Montes case. 128 F.3d at 1461. It remains

the only case in which we have ever found the exceptional circumstances that

satisfy the exacting requirements of this exception. See, e.g., Univ. Commons-

Urbana, Ltd. v. Universal Constructors, Inc., 304 F.3d 1331, 1338 (11th Cir. 2002)

(“[W]e have no indication of the arbitrators’ reasons for [their award], and thus,

we have no reason to believe that they disregarded the law in doing it”); Brown v.

ITT Consumer Fin. Corp., 211 F.3d 1217, 1223 (11th Cir. 2000) (even if the

arbitrator applied the wrong legal standard, appellant did not show that “that this

alleged error was intentional or that the arbitrator made a conscious decision not to

follow the appropriate legal standard”); Scott v. Prudential Sec., Inc., 141 F.3d

1007, 1017 n.21 (11th Cir. 1998) (appellant’s arguments did not “approach the

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type of disregard for the law that we found in Montes” and the record and briefs

showed “nothing more than a disagreement over the application of the law not its

manifest disregard”).

The Montes litigation arose out of a dispute between an employer and

employee about overtime pay. See Montes, 128 F.3d at 1458. The controlling

law, the Fair Labor Standards Act, was against the employer’s position, and during

the arbitration proceedings its attorney repeatedly urged the arbitrators to

disregard the requirements of the Act and rule for the employer on the basis of

equitable considerations. Id. at 1459. He told the arbitrators that: “you as an

arbitrator are not guided strictly to follow case law precedent . . . you can also do

what’s fair and just and equitable and that is what [my client] is asking you to do

in this case.” Id. Instead of contending that the law could be applied favorably to

his client’s position, the attorney argued the arbitrators that “in this case this law is

not right,” and “[t]he law says one thing. What equity demands and requires and

is saying is another.” Id. He explicitly asked the arbitrators not to follow the law.

Id. (“Thus, as I said in my Answer, as I said before in my Opening, and I now ask

you in my Closing, not to follow the FLSA if you determine that she’s not an

exempt employee.”)

The arbitrators in Montes found in favor of the employer, and in their award

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they repeated the plea of the employer’s attorney that they disregard the law. Id. at

1461. There was nothing in the transcript of the proceedings or the award itself to

indicate that the arbitrators had not heeded that plea, and the evidence and law did

not support the award. Id. at 1461–62.

In holding that the arbitrators had acted in manifest disregard of the law in

Montes, we disavowed any notion that an arbitrator’s decision “can be reviewed

on the basis that its conclusion or reasoning is legally erroneous.” Id. at 1461;

accord id. at 1460 (“This does not mean that arbitrators can be reversed for errors

or misinterpretations of law.”). And we emphasized the rare nature of the

circumstances in that case. Id. at 1461–62. Four facts came together in Montes

and will seldom recur:

Those facts are that: 1) the party who obtained the favorable award
had conceded to the arbitration panel that its position was not
supported by the law, which required a different result, and had urged
the panel not to follow the law; 2) that blatant appeal to disregard the
law was explicitly noted in the arbitration panel’s award; 3) neither in
the award itself nor anywhere else in the record is there any indication
that the panel disapproved or rejected the suggestion that it rule
contrary to law; and 4) the evidence to support the award is at best
marginal.

Id. at 1464 (Carnes, J., concurring).

While Montes shows the exception, the rule is shown in every other case

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where we have decided if the arbitration loser had established manifest disregard

of the law. In all of those other cases the loser in arbitration was the loser in our

decision. See Peebles, 431 F.3d at 1327 (11th Cir. 2005); Univ. Commons, 304

F.3d at 1338; Brown, 211 F.3d at 1223; Scott, 141 F.3d at 1017 n.21.

The facts of this case do not come within shouting distance of the Montes

exception. This is a typical contractual dispute in which the parties disagree about

the meaning of terms of their agreement. There are arguments to be made on both

sides of the contractual interpretation issue, and they were made to the arbitrator

before being made to the district court and then to us. Even if we were convinced

that we would have decided this contractual dispute differently, that would not be

nearly enough to set aside the award. See Peebles, 431 F.3d at 1326 (“[A] litigant

arguing that an arbitrator acted in manifest disregard of the law must show

something more than a misinterpretation, misstatement, or misapplication of the

law.”); Brown, 211 F.3d at 1223 (“Arbitration awards will not be reversed due to

an erroneous interpretation of law by the arbitrator.”); Montes, 128 F.3d at 1461

(“An arbitration board that incorrectly interprets the law has not manifestly

disregarded it. It has simply made a legal mistake.”).

Harbert’s argument that the arbitration award clearly contradicts an express

term of the contract is simply another way of saying that the arbitrator clearly

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erred, and even a showing of a clear error on the part of the arbitrator is not

enough. The arbitration loser must establish more than that in order to have the

award set aside, the more being that the arbitrator actually recognized a clear rule

of law and deliberately chose to ignore it. Peebles, 431 F.3d at 1326 (“A manifest

disregard for the law involves a conscious and deliberate decision to ignore the

applicable law.”); id. at 1327 (“At most, the arbitration panel may have

misunderstood the effect and weight to be given to cases cited by the parties. On

the record before us, we cannot find proof that the arbitrators recognized a clear

rule of law and chose to ignore it. Therefore, we cannot find that the arbitrators

acted in manifest disregard for the law.”); Univ. Commons, 304 F.3d at 1338

(“[W]e cannot find proof that the arbitrators recognized a clear rule of law and,

furthermore, chose to ignore it. Therefore, we cannot find that the arbitrators acted

in manifest disregard for the law . . . .”); Brown, 211 F.3d at 1223 (“Brown argues

that the arbitrator applied the wrong legal test in assessing his retaliation claim,

but does not assert that this alleged error was intentional or that the arbitrator

made a conscious decision not to follow the appropriate legal standard. Even if

the arbitrator applied the wrong standard, which we need not decide, no manifest

disregard for the law has been shown, and Brown’s argument fails.”).

Harbert’s unconvincing position to the contrary has two legs, neither of

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which will support it. One is Harbert’s insistence that the contract is part of the

law the arbitrator must apply, so that any misapplication of the contract is a

misapplication of the law. The contract is not part of the applicable law, but the

agreement of the parties to which the law is applied. In any event, as we have

already explained, errors of law are not enough to justify setting aside an

arbitration award.

The other leg of Harbert’s position is dicta from our University Commons

opinion. In that case a developer and construction company arbitrated their

dispute over the company’s alleged failure to meet its contractual deadlines. 304

F.3d at 1333–34. The arbitrators found in favor of the developer, awarding it lost

rental income for a particular time period even though the project had been

completed before that period began. See id. at 1336–37. The construction

company argued that was error which established the arbitrators had acted in

manifest disregard for the law and on that basis the company moved to set aside

the award. Id.

The district court instead entered an order confirming the arbitrators’ award,

and we refused to reverse its order on the ground that the arbitrators had acted in

manifest disregard of the law. Univ. Commons, 304 F.3d at 1345 (vacating the

district court’s order and remanding for findings with respect to another ground).

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In doing so, we emphasized that there was no showing in the record of the

arbitrators’ thinking other than the award itself. Id. at 1337. We explained that we

could not ascertain from the “bare-bones statement of the award” what principle of

law the arbitrators allegedly chose to ignore. Id. Because there was no transcript

of the proceedings, we could not examine the arbitrators’ questions or remarks for

possible evidence of their legal rationale. Id. There also did not appear to be any

clear rule of law that the arbitrators might have broken. Id. at 1338. We reiterated

in University Commons the holding of our decisions that “[t]o manifestly

disregard the law, one must be conscious of the law and deliberately ignore it.” Id.

at 1337 (quoting Brown, 211 F.3d at 1223 (alteration in original)). The arbitration

loser having failed to establish a manifest disregard for the law, we rejected that

attack on the award, holding: “We cannot find proof that the arbitrators

recognized a clear rule of law and, furthermore, chose to ignore it. Therefore, we

cannot find the arbitrators acted in manifest disregard of the law.” Id. at 1338.

Faced with that result and reasoning in University Commons, Harbert

focuses on a sentence of dicta from the opinion in that case: “Theoretically, we

suppose, the arbitrators’ approach to the award of damages could be in disregard

of the law altogether, if it differed from the provisions of the contract.”

See id. at 1338 n.7. This one sentence of speculative dicta in one footnote of one

17
opinion cannot plausibly be construed as setting out a rule of law—that

misinterpretation of a contract may constitute a manifest disregard of the law.

That is especially true since such a rule would be contrary not only to the holding

and express rationale of University Commons, but also to the settled Eleventh

Circuit precedent which governed that decision. Under the well-established law of

this circuit, which we have already discussed, if we believe that the arbitrator’s

approach differed from the provisions of the contract, at most that only establishes

the arbitrator erred, which is not enough to conclude there was a manifest

disregard of the law. See Montes, 128 F.3d at 1461.

There is no evidence that the attorney for Hercules urged the arbitrator to

disregard the law, and Harbert does not even suggest that happened. There is no

evidence that the arbitrator decided the dispute on the basis of anything other than

his best judgment—whether right or wrong—of how the law applies to the facts of

the case. There is, in short, no evidence that the arbitrator manifestly disregarded

the law. The only manifest disregard of the law evident in this case is Harbert’s

refusal to accept the law of this circuit which narrowly circumscribes judicial

review of arbitration awards. By attacking the arbitration award in this case

Harbert has shown at best an indifference to the law of our circuit governing the

subject. Harbert’s refusal to accept that there is no basis in the law for attacking

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the award has come at a cost to the party with whom Harbert entered into the

arbitration agreement and to the judicial system.

In litigating this case without good basis through the district court and now

through this Court, Harbert has deprived Hercules and the judicial system itself of

the principal benefits of arbitration. Instead of costing less, the resolution of this

dispute has cost more than it would have had there been no arbitration agreement.

Instead of being decided sooner, it has taken longer than it would have to decide

the matter without arbitration. Instead of being resolved outside the courts, this

dispute has required the time and effort of the district court and this Court.

When a party who loses an arbitration award assumes a never-say-die

attitude and drags the dispute through the court system without an objectively

reasonable belief it will prevail, the promise of arbitration is broken. Arbitration’s

allure is dependent upon the arbitrator being the last decision maker in all but the

most unusual cases. The more cases there are, like this one, in which the arbitrator

is only the first stop along the way, the less arbitration there will be. If arbitration

is to be a meaningful alternative to litigation, the parties must be able to trust that

the arbitrator’s decision will be honored sooner instead of later.

Courts cannot prevent parties from trying to convert arbitration losses into

court victories, but it may be that we can and should insist that if a party on the

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short end of an arbitration award attacks that award in court without any real legal

basis for doing so, that party should pay sanctions. A realistic threat of sanctions

may discourage baseless litigation over arbitration awards and help fulfill the

purposes of the pro-arbitration policy contained in the FAA. It is an idea worth

considering.

We have considered ordering Harbert and its counsel to show cause why

sanctions should not be imposed in this case, but have decided against doing so.

That decision is the product of the combined force of three reasons, which we list

in reverse order of weight. First, there is speculative dicta in the University

Commons opinion that provided Harbert with a little cover for its actions,

although this factor alone does not carry much weight. The rule that prior panel

precedent trumps later decisions, to say nothing of later dicta, is so well known

and well established that lawyers and their clients should be held responsible for

knowing that rule and acting accordingly. Second, Hercules did not move for

sanctions against Harbert in either the district court or in this Court. While we can

raise and consider the issue of sanctions on our own, after giving the parties notice

and an opportunity to be heard, the lack of interest in sanctions shown by the party

to whom any monetary sanctions would be paid is a factor to consider.

Third, and most importantly, when Harbert took its arbitration loss into the

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district court and then pursued this appeal, it did not have the benefit of the notice

and warning this opinion provides. The notice it provides, hopefully to even the

least astute reader, is that this Court is exasperated by those who attempt to

salvage arbitration losses through litigation that has no sound basis in the law

applicable to arbitration awards. The warning this opinion provides is that in

order to further the purposes of the FAA and to protect arbitration as a remedy we

are ready, willing, and able to consider imposing sanctions in appropriate cases.

While Harbert and its counsel did not have the benefit of this notice and warning,

those who pursue similar litigation positions in the future will.

AFFIRMED.

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