Filed: Jun. 09, 2008
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 9, 2008 No. 08-20036 Charles R. Fulbruge III Summary Calendar Clerk NORIS G ROGERS Plaintiff-Appellant v. KBR TECHNICAL SERVICES INC; THE UNITED STATES ARMY FIELD SUPPORT COMMAND Defendants-Appellees Appeal from the United States District Court for the Southern District of Texas USDC No. 4:06-CV-1389 Before KING, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* Pro se Plaintiff-App
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 9, 2008 No. 08-20036 Charles R. Fulbruge III Summary Calendar Clerk NORIS G ROGERS Plaintiff-Appellant v. KBR TECHNICAL SERVICES INC; THE UNITED STATES ARMY FIELD SUPPORT COMMAND Defendants-Appellees Appeal from the United States District Court for the Southern District of Texas USDC No. 4:06-CV-1389 Before KING, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* Pro se Plaintiff-Appe..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2008
No. 08-20036 Charles R. Fulbruge III
Summary Calendar Clerk
NORIS G ROGERS
Plaintiff-Appellant
v.
KBR TECHNICAL SERVICES INC; THE UNITED STATES ARMY FIELD
SUPPORT COMMAND
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-1389
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Pro se Plaintiff-Appellant Noris Rogers appeals the district court’s denial
of his motion to vacate an arbitration award, denial of his post-judgment motion,
and grant of Defendant-Appellee KBR Technical Services Inc.’s (“KBR”) motion
to confirm the arbitration award. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-20036
I. FACTS AND PROCEEDINGS
On August 25, 2005, Rogers entered into an employment agreement with
Service Employees International, Inc. (“SEII”) through KBR to work as an
electrician in Afghanistan. SEII and KBR were affiliated companies that were
both subsidiaries of Halliburton, Inc. Under the employment agreement, Rogers
agreed to submit any claims to arbitration in accordance with the Halliburton
Dispute Resolution Program (“HDRP”). Rogers worked at Camp Eggers, a U.S.
military installation in Kabul, Afghanistan. On September 29, 2005, he
complained to the U.S. Army inspector general’s office that KBR was in default
on several obligations, but his claims were found to be unsubstantiated. On
November 12, 2005, Rogers demanded that KBR arrange a non-stop flight from
Kabul to Houston so that he could demobilize, because, he claimed, KBR was in
violation of his contract and the living conditions were unsuitable. On November
20, 2005, he left Camp Eggers without authorization or military escort to visit
a travel agency and arrange for his trip home. Upon his return to the camp, he
was detained by U.S. military personnel. He was ordered removed from the
camp by the military commander, and his employment was terminated for
violating company policy. Rogers was subsequently sent to Bagram Air Field
before being flown back to the United States on a military flight.
On April 21, 2006, Rogers filed a complaint pro se against KBR and the
U.S. Army Field Support Command alleging various claims arising out of his
employment in Afghanistan. The district court granted a motion by KBR to
compel Rogers to arbitrate his claims. On June 27, 2007, the arbitrator issued
a decision. The arbitrator ruled against Rogers on all claims except for two
“payment claims,” one for an unpaid work area differential and another for
reimbursement of postal expenses for the shipment of personal items. The
arbitrator awarded Rogers $252.84 for these claims.
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No. 08-20036
Rogers moved to vacate the decision. KBR moved to confirm it. On
November 8, 2007, the district court granted KBR’s motion and confirmed the
award. Rogers then filed a post-judgment motion, titled a “motion for
reconsideration,” which was denied. He sought leave to file an amended motion
for reconsideration, which was also denied.
Rogers timely appealed.
II. STANDARDS OF REVIEW
A district court’s confirmation of an arbitrator’s award is reviewed de novo.
Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1320 (5th Cir. 1994).
Our review of the arbitrator’s award itself, however, is very
deferential. We must sustain an arbitration award even if we
disagree with the arbitrator’s interpretation of the underlying
contract as long as the arbitrator’s decision draws its essence from
the contract. In other words, we must affirm the arbitrator’s
decision if it is rationally inferable from the letter or the purpose of
the underlying agreement. In deciding whether the arbitrator
exceeded its authority, we resolve all doubts in favor of arbitration.
Id. (internal quotations and citations omitted).
A district court’s decision on a motion to alter or amend judgment under
Federal Rule of Civil Procedure 59(e) is reviewed for abuse of discretion,
“[h]owever, [t]o the extent that a ruling was a reconsideration of a question of
law . . . the standard of review is de novo.” Ross v. Marshall, 426 F.3d 745, 763
(5th Cir. 2005) (internal quotations omitted). “A district court abuses its
discretion if it bases its decision on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.”
Id. (internal quotations omitted).
III. APPLICABLE LAW
Under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., a district
court may vacate an arbitration award:
(1) where the award was procured by corruption, fraud, or undue
means;
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No. 08-20036
(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 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). This Circuit has previously held that an arbitration award may
be vacated on non-statutory grounds when an arbitrator manifestly disregards
the law, which “is an extremely narrow, judicially-created rule with limited
applicability,” or if it is “contrary to public policy.” Prestige Ford v. Ford Dealer
Computer Servs., Inc., 324 F.3d 391, 395–96 (5th Cir. 2003).
The Supreme Court has recently held that the provisions of the FAA are
the exclusive grounds for expedited vacatur and modification of an arbitration
award, which calls into doubt the non-statutory grounds which have been
recognized by this Circuit. See Hall Street Assocs., L.L.C. v. Mattel, Inc., 128
S. Ct. 1396, 1403 & n.5 (2008). However, because we affirm the district court
and hold that the arbitration award is confirmed, there is no need in the instant
case to determine whether those non-statutory grounds for vacatur of an
arbitration award remain good law after Mattel.
IV. DISCUSSION
A. Motion to Vacate
On appeal, Rogers challenges the district court’s denial of his motion to
vacate on four grounds.
(1) Contractually Provided Rules
In his motion to vacate, Rogers alleged that the “[a]rbitrator exceeded her
[a]uthority and showed [m]anifest [d]isregard in ruling that the [American
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No. 08-20036
Arbitration Association (“AAA”)] Rules rather than the Halliburton Dispute
Resolution Program (HDRP) rules would apply to this dispute.” The HDRP
adopts the AAA rules. Thus, nothing in the record shows that the arbitrator
exceeded its powers or manifestly disregarded the law by applying the AAA rules
to the arbitration.
However, from the wording of the remainder of Rogers’s discussion of this
issue in his motion to vacate, it appears that he specifically claimed that the
arbitrator manifestly disregarded the law in ruling that the July 1, 2006 AAA
rules, as opposed to earlier rules, applied to the proceedings. This interpretation
is confirmed by Rogers’s post-judgment motion, which clearly states Rogers’s
disagreement with the version of the AAA rules that was applied. As we
liberally construe the arguments made by a pro se litigant, we address this issue
under the standard of review for a motion to vacate an arbitration award, rather
than the standard of review for a post-judgment motion. See Andrade v.
Gonzales, 459 F.3d 538, 543 (5th Cir. 2006) (stating “[w]e must construe the
pleadings of pro se litigants liberally”).
Rogers relied on the HDRP’s provision that no amendment of the rules,
including AAA rules, could be applied to an already-initiated dispute. He
claimed that, because he had first invoked the terms of the HDRP in a letter on
October 18, 2005, the arbitrator was incorrect in determining that the
arbitration was initiated on August 14, 2006 and applying the July 1, 2006 AAA
rules. This claim fails because Rogers’s October 18, 2005 letter did not initiate
proceedings under the HDRP. The letter was a request for legal services
pursuant to a legal consultation plan provided by Halliburton. Rogers also
attempted to rely on the wording of the district court’s decision to compel
arbitration to establish that he had invoked the arbitration clause. Neither the
October 18, 2005 letter, nor the district court’s opinion compelling arbitration,
indicate that the arbitrator erred in determining that the arbitration proceeding
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No. 08-20036
was initiated after July 1, 2006. In fact, the August 14, 2006 demand for
arbitration which led to the proceeding over which the arbitrator presided
initiated the arbitration. We hold that the arbitrator’s decision to apply the July
1, 2006 rules was rationally inferrable from the employment agreement and
rules.
(2) Denial of Motion for a Judgment of Default
Rogers alleged that the arbitrator manifestly disregarded the law by
failing to grant his motion for a judgment of default. He argued that Rule 3(E)
of the HDRP required KBR to submit an answering statement by a certain date.
KBR’s failure to do so, Rogers claimed, entitled him to a default judgment.
Although he correctly cited the HDRP rules, Rogers failed to cite any authority
in the employment agreement, the HDRP, or any law which required a default
judgment if a party failed to file an answering statement in a timely fashion.
The AAA case manager indicated that a failure to file an answering statement
would result in it not being considered by the AAA, but did not state that a
default judgment was a sanction for failing to file an answering statement in a
timely fashion. We conclude that the arbitrator’s decision to deny Rogers’s
motion for a default judgment could be rationally inferred from the HDRP.
(3) Rules Regarding Travel to Afghanistan
Rogers claimed that the arbitrator manifestly disregarded the law in
determining that KBR did not breach its contract with him by failing to obtain
an Afghan visa for him. He relied on a U.S. State Department Consular
Information Sheet entered into the record to show that KBR forced him to
perform an illegal act by flying him into Afghanistan without a visa. Assuming
arguendo that the State Department’s summary of Afghanistan’s requirements
are a reflection of governing law, the sheet only indicates that “[a] passport and
valid visa are required to enter and exit Afghanistan. . . . Americans arriving in
the country by military air usually have considerable difficulties if they choose
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No. 08-20036
to depart Afghanistan on commercial air, because their passports do not receive
stamps showing they entered the country legally.” In his motion to vacate,
Rogers selectively quoted the State Department information, failing to note that
the those arriving by military air were encouraged to legalize their status upon
arrival, “if there is any chance they will end up departing on anything other than
military air.” Because KBR arranged military transportation for Rogers to and
from Afghanistan, according to the information sheet, there was no need for
Rogers to obtain a visa for Afghanistan.
Nothing in the information sheet, or elsewhere in the record, indicates that
Rogers was performing an illegal act when he entered Afghanistan on a U.S.
military-chartered aircraft to work on a U.S. military base in a war zone without
first obtaining a visa, or that his failure to obtain a visa after his arrival was an
illegal act. Rogers has not shown that the arbitrator manifestly disregarded the
law in concluding that Rogers had the proper documents to work at Camp
Eggers in Afghanistan.1 The arbitrator’s decision was rationally inferrable from
the employment agreement and rules.
(4) Failure to Provide Written Reasons
Rogers argued that the arbitrator failed to issue rulings on his personal
injury and false advertising claims. He claimed that this violated the HDRP
rules and the AAA code of ethics for arbitrators.2
1
In his post-judgment motion, Rogers raised the issue of KBR failing to register him
with the U.S. Embassy in Afghanistan. This was not alleged in his motion to vacate. Thus,
it will only be reviewed under the standard for a post-judgment motion. See infra.
2
In Rogers’s motion to vacate, he alleged that the arbitrator manifestly disregarded
the law pertaining to his personal injury and false advertising claims by not providing written
reasons for its award. In his post-judgment motion, this alleged error in failing to provide
written reasons was characterized as misconduct on the part of the arbitrator, as opposed to
a manifest disregard of the law. In his briefs on appeal, Rogers only claims that the
arbitrator’s failure to provide written reasons was misconduct, as he alleged in his post-
judgment motion, not a manifest disregard of the law as he argued in his motion to vacate.
Thus, KBR reasonably argues that this Court should review the arbitrator’s failure to provide
written reasons under the standard for a post-judgment motion. However, as a pro se litigant,
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No. 08-20036
The HDRP rules require that “[t]he arbitrator shall write a statement of
reasons for the award if requested to do so in the request to initiate proceedings
or in the answering statement.” In his motion to vacate, Rogers failed to cite any
request for a written statement of reasons in the request to initiate proceedings
or in an answering statement.
The AAA code of ethics only notes that “[t]he arbitrator should, after
careful deliberation, decide all issues submitted for determination.” The plain
language of this ethical rule does not require a written statement regarding each
claim. Clearly, the arbitrator decided Rogers’s tort and false advertising claims
by not awarding him anything for those claims.
It does not appear that the arbitrator manifestly disregarded those rules.
Even if the arbitrator had, there is nothing to show that a failure to provide
written reasons resulted in a “significant injustice”, which is required to grant
relief. Am. Laser Vision, P.A. v. Laser Vision Inst., L.L.C., 487 F.3d 255, 259 (5th
Cir. 2007). Furthermore, the arbitrator’s decision was rationally inferrable from
the employment agreement and rules.
B. Post-Judgment Motion
The Federal Rules of Civil Procedure do not recognize a “motion for
reconsideration” in those words. Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid
Air Corp.,
37 F.3d 1069, 1076 n.14 (5th Cir. 1994).
[A] motion [for reconsideration], provided that it challenges the
prior judgment on the merits, will be treated as either a motion “to
alter or amend” under Rule 59(e) or a motion for “relief from
judgment” under Rule 60(b). Under which Rule the motion falls
turns on the time at which the motion is served. If the motion is
served within ten days of the rendition of judgment, the motion falls
we construe his briefs liberally and address the issue raised in the motion to vacate. See
Andrade, 459 F.3d at 543.
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No. 08-20036
under Rule 59(e); if it is served after that time, it falls under Rule
60(b).
Lavespere, 910 F.2d at 173 (footnotes omitted). Rogers’s motion for
reconsideration was filed within ten days of the rendition of judgment. Thus, it
falls under Rule 59(e).
Motions under Rule 59(e) are not subject to the same stringent limitations
as those under Rule 60(b). Id. at 173–74.
[I]n order to reopen a case under Rule 59(e) on the basis of
evidentiary materials that were not timely submitted, the mover
need not first show that her default was the result of mistake,
inadvertence, surprise, or excusable neglect or that the evidence is
such as to show that the judgment was manifestly wrong.
Id. at 174. However, “a motion to alter or amend the judgment under Rule 59(e)
must clearly establish either a manifest error of law or fact or must present
newly discovered evidence and cannot be used to raise arguments which could,
and should, have been made before the judgment issued.” Rosenzweig v. Azurix
Corp.,
332 F.3d 854, 863 (5th Cir. 2003) (internal quotations omitted).
(1) Applying the July 1, 2006 Rules
This issue in Rogers’s post-judgment motion was simply a more explicitly
worded restatement of the same argument made in Rogers’s motion to vacate,
which is addressed above. There is no need to address it again. Rogers did not
submit any newly discovered evidence in his post-judgment motion, and the
district court did not abuse its discretion in denying Rogers’s post-judgment
motion on this issue.
(2) Manifest Disregard of Federal Rule of Civil Procedure 55
In his post-judgment motion, Rogers for the first time argued that KBR’s
failure to submit a timely answer to his demand for arbitration was a violation
of Rule 55. He claimed that the arbitrator manifestly disregarded the law by not
granting his motion for a default judgment. He could and should have made this
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No. 08-20036
argument in his motion to vacate. Thus, it could not be made in a Rule 59(e)
motion. Rosenzweig, 332 F.3d at 863.
Even if he had made this argument in his motion to vacate, Rule 1 states
“[t]hese rules govern the procedure in all civil actions and proceedings in the
United States district courts.” Rule 55 does not apply to arbitration proceedings.
HDRP rules require the application of the “state or federal substantive law
which would be applied by a United States District Court” to arbitration
proceedings. However, that rule refers to substantive law, not procedural law
or rules. The arbitrator’s decision not to apply Rule 55 to the arbitration
proceedings was rationally inferrable from the employment agreement and rules.
The district court did not abuse its discretion in denying Rogers’s post-judgment
motion on this issue.
(3) Rules Regarding Travel to Afghanistan
Rogers reiterated his argument from his motion to vacate that KBR should
have obtained an Afghan visa for him. There is no need to address that issue
again. However, in his post-judgment motion, Rogers added a claim that KBR
failed to register him with the U.S. Embassy or Consulate when he entered
Afghanistan, citing that as a requirement under KBR’s contract with the U.S.
Army. Rogers could and should have made this argument in his motion to
vacate. It could not be made in a Rule 59(e) motion. See Rosenzweig, 332 F.3d
at 863. Even if properly made, Rogers presented no evidence to show that he
was not registered with the appropriate U.S. Embassy or Consulate when he was
working at Camp Eggers. The district court did not abuse its discretion in
denying Rogers’s post-judgment motion on this issue.
(4) Failure to Provide Written Reasons
In his motion to vacate, Rogers claimed the arbitrator manifestly
disregarded the law when it did not provide written reasons its decision
regarding each of his claims. In his post-judgment motion, he re-characterized
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No. 08-20036
this claim as misconduct on the part of the arbitrator and cited items in the
record which he claimed were requests for written reasons. This is an argument
that Rogers could and should have made in his motion to vacate. Id. The
evidence he cited to show that he made a request for written reasons was not
newly discovered. Further, he cited a January 31, 2007 conference call which
was neither a request to initiate proceedings nor an answering statement. Thus,
it was insufficient under the HDRP rules to require the arbitrator to provide a
written statement of reasons. Even if Rogers had raised this argument and cited
this evidence in his motion to vacate, he failed to show that the arbitrator was
guilty of misconduct that resulted in prejudice to him. He also failed to show
that the arbitrator’s decision was not rationally inferrable from the agreement
and rules. The district court did not abuse its discretion in denying Rogers’s
post-judgment motion on this issue.
V. CONCLUSION
The district court’s denial of Rogers’s motion to vacate the arbitration
award, denial of his post-judgment motion, and grant of KBR’s motion to confirm
the arbitration award are AFFIRMED.
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