NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3326

DONALD F. ULIANO, Petitioner,

v. CENTERS FOR MEDICARE AND MEDICAID SERVICES, BOSTON REGIONAL OFFICE, Respondent.

__________________________ DECIDED: June 16, 2006

__________________________

Before NEWMAN, LINN, and PROST, Circuit Judges

. PER CURIAM.

Donald F. Uliano seeks review of the arbitrat or's decision dismissing his grievance. We affirm

. BACKGROUND The arbitrator held a heari ng to consider, together, the appeals of Mr. Uliano and a fellow employee, Abraham Heitin, both of whom had brought grievances relating to their alleged involuntary retirements from the Cent er for Medicare and Medicaid Services (the05-3326 2 "agency"). Mr. Uliano has not pr ovided us with the events that led to his grievance; however, Mr. Heitin's grievance related to asserted pressure to retire, including his supervisor's threat to make him, but not other employees, account for "every minute" of his time. Mr. Heitin's and Mr. Uliano's union representative fil ed a Union Management Grievance in accordance with Article 24 of the Master Labor Agreement. The grievance was the subject of a teleconference, the record referring for the first ti me to Mr. Uliano: "Mr. Heitin and Mr. Uliano [were] pres ent by phone." The agency rejected the grievance, finding that the retirements of both "Mr. He itin and Mr. Uliano" were "voluntary." The union proceeded to arbitrat ion, in accordance with the Labor Agreement. The arbitrator and the parties scheduled hearings for August 5-6, 2004 and October 19-20, 2004 in Boston, Massachusetts, the location of the agency's regional office. Mr. Uliano, through his attorney Mr. Roger Mervis, objected to the location of the hearings, stating that the location would trigger "many stressful memories" and would aggravate "his physical and emotional condition." Mr. Uliano later withdr ew this request, and testified on August 6, 2004. His cross-examination was sc heduled to begin on October 19, 2004. On October 19, 2004, neither Mr. Uliano nor attorney Mervis was present. Mr. Eric Pines, who represented the union and also represented Mr. Heitin , informed the arbitrator that: I'm here with a message, I don't repres ent Don Uliano, but Roger Mervis informed as of, well the story was about a week ago I got a call from Roger Mervis that Don Uliano did not want to testify in this case because of a discussion he had with his therapist and emot ional difficulties he's having, as obviously were characterized from his testimony. He did not want to go forward with the case anymore. Then I was told I would get a firm commi tment as to whether he would go forward or not. About 20 minutes ago I finally heard again from Mr. Mervis05-3326 3 who informed me that Mr. Uliano had in formed him that he would like to testify by telephone for the rest of his testimony . . . Transcript at 330. The arbitrat or denied the request, reasoning that: We can't have the opportunity for him to go on as he did the last time we were here and not have him here in person to be cross examined. And especially in this type of case, given t he claim he is making, he is either going to have to come forward and testify, or B- two things, he can drop his case, or I will take note of the fact, with pr ejudice that he failed to appear, and I will take that into account when I make my decision. Id. at 331. During a break, atto rney Pines conveyed this decis ion of the arbitrator to attorney Mervis by telephone, and then informed t he arbitrator that "Mr. Mervis said Don still would not appear for the hearing" and would only testify by telephone. The parties and the arbitrator thereafter c onsidered the impact of Mr. Uliano's refusal to appear in person for cross-examination. Ms. Wilhelm, the agency's counsel, moved to dismiss the "entire case," in cluding the grievance of Mr. He itin; however, the arbitrator decided that the parties should proceed and present their remaini ng witnesses. In order to determine what remaining witnesses should appear, the parties requested clarification of the arbitrator's ruling regarding Mr. Uliano. The arbitrator stat ed that all of Mr. Uliano's testimony in support of himself or Mr. He itin would be stricken, reasoning that: Uliano has not presented himself nor his attorney to be here to subject himself to cross examination, t herefore, the Agency has not had an opportunity to rebut his ca se, therefore, I cannot rule favorably on Uliano's case without the Agency being given the full opportunity to cross examine. Transcript at 344. Attorney Pines then conv eyed a request from attorney Mervis to participate by telephone. The ar bitrator agreed, as long as the agency was involved in the communication. After a recess, attorney Pines informed the arbitrator that he had relayed the arbitrator's position to attorney Mervis via voicemail and had told him that he should05-3326 4 telephone in the next four to five minutes if he wanted to participate. No call from Mervis was received. The parties then scheduled final briefing for December 6, 2004, and the hearing was ended. The next and last communication in the re cord concerning Mr. Uliano occurred on January 28, 2005, when attorney Mervis sent t he arbitrator an e-mail asking the arbitrator to "please excuse this last minute communication" and exercise his discretion to keep the record open until Mr. Uliano could complete his test imony. Attorney Mervis stated that Mr. Uliano's therapists had recomm ended that he not attend the hearings, that Mr. Uliano would still like to complete his testimony and ma ke himself available for cross-examination, and that he would be willing to do so in an "expeditious and cost-effective fashion ( e.g. , teleconference)." Attorney Merv is offered to provide the arbitr ator with "(1) legal points and authorities and (2) documentation of Mr. Uliano' s disabilities, upon request." The record does not contain any reply to this communication. The arbitrator issued a wr itten decision on June 22, 2004. As to Mr. Uliano, the arbitrator held, "In as much , neither Counsel Mervis nor Uliano chose to come to the hearing to be subject to cross examinati on for which they had been scheduled to appear since August, they have effectively withdraw n their case, and the Uliano grievance is dismissed." Arb. Dec. at 3. Mr. Uliano appeals, arguing, broadl y, that he was inadequately represented by counsel and by the union, and that the arbitr ator should have accommodated his physical and ment al disadvantages and trauma.05-3326 5 DISCUSSION We review an arbitrator's decision under t he same standard as for decisions of the Merit Systems Protection Board. See 5 U.S.C. §7121(f). The arbi trator's decis ion must be upheld unless it is "(1) arbitr ary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedur es required by law, rule, or regulation having been followed; or (3) unsupported by subs tantial evidence." 5 U.S.C. §7703(c); see King v. Dep't of Navy , 130 F.3d 1031, 1033 (Fed. Cir. 1997). Mr. Uliano states that the arbitrator's decision shoul d be reversed based on the alleged errors and misconduct and inadequate repr esentation by attorneys Mervis and Pines. Mr. Uliano states that both Pines and Merv is were aware of his inability to appear through an e-mail sent well in advance of the hearing; he states that Pines and Mervis intentionally abandoned his case after he informed them that "some testimony (which they instructed me to change) on behalf of Mr. Heit in was indeed false and that I would not commit perjury under oath." He states that attor ney Pines told the arbitrator that he did not represent Mr. Uliano, knowing full well that he represented bot h Mr. Uliano and Mr. Heitin. Mr. Uliano also questions the neutrality of the ar bitrator, citing the informality of e-mails between the arbitrator and attorney Pines. The agency replies that none of these allegations is supported by evidence. The agency also invokes the "well settled" principle t hat a party is bound by his representative's conduct. Whitaker v. Merit Sys. Prot. Bd. , 784 F.2d 1109, 1110 (Fed. Cir. 1986) (citing Link v. Wabash Railroad Co. , 370 U.S. 626, 633-34 (1962)). This principle is subject to an exception where the attorney's deceptions and negligence has thwarted the client's diligent efforts to prosecute the suit, as in Dunbar v. Departm ent of the Navy , 43 M.S.P.R. 640, 64405-3326 6 (1990). We agree with the agency, however, that the record does not support an allegation that Mr. Uliano's efforts to pur sue his case were thwarted by deceptions or negligence of an attorney. We also agree with the agency that Mr. Uliano's charges as to the neutrality of the arbitrator are devoid of support. Mr. Uliano states that it was arbitrary, capricious, and an abuse of discretion for the arbitrator to dismiss his ca se, rather than accommodate his mental and physical disability and allow him to testify by telephone. Mr. Uliano st ates that it was "highly extraordinary" for the arbitrator to split the case, ruling favor ably for Mr. Heitin but dismissing Mr. Uliano's case. The agency responds by pointing to the importance of cr oss examination, see Davis v. Alaska , 415 U.S. 308, 316 (1974) ("'The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers' . . . Cross-examination is the principal means by which the believability of a witness and the tr uth of his testimony are tested") (quoting 5 J. Wigmore, Evidence §1395, p. 123 (3d ed. 1940)). The agency also points to the lack of medical records or other explanation of Mr. Uli ano's alleged mental or physical disabilities, observing that Mr. Uliano had already proven capabl e of testifying at the August hearing, and that Mr. Uliano stated in hi s informal brief that, upon additional consultation with his therapist, he determined that he would be able to testify on October 20, 2004, the day after the hearing had been scheduled to begin. We do not discern reversible error in the arbitrator's insistenc e that Mr. Uliano must be cross-examined in person and not by telephone. A leading treatise on arbitration has discussed the importance of in-per son testimony in arbitration:05-3326 7 While some arbitrators have permi tted telephone testimony for basic background information or as a last resor t, most arbitrators view the use of telephone testimony with skepticism. Permitting a witness to testify by telephone prevents both the arbitrator , and the opposing advocate, from evaluating the witness's demeanor and t hus hinders the ability to judge the witness's credibility. It also impairs a party's right to confront and to effectively cross-examine the witness. Elkouri & Elkouri, How Arbitration Works 365 (6th ed. 2003). The failure of Mr. Uliano to appear personally led to the arbitrator's c onclusion that the grievance was unsupported and must be dismissed. Upon informing Mr. Uliano' s attorney, through attorney Pines, that without such testimony he could not "rule favorably on Uliano's case," the arbitrator was led by the absence of a timely proffer of such appearance to conclude that Mr. Uliano and his counsel had "effectively withdrawn thei r case." Arb. Dec. at 3. The Supreme Court has recognized the i nherent power of a decision maker to dismiss a case for failure to prosecute. Chambers v. NASCO , 501 U.S. 32, 49 (1991). Similar procedure is followed in appeals to the Merit Systems Protection Board, see , e.g. , Wright v. Dep't of Treasury , 53 M.S.P.R. 244, 252 (1992) (" An administrative judge is authorized to impose the sanction of dismissal if a party fails to prosecute or defend an appeal.") (citing 5 C.F.R. §1201.43(b) ("If a party fails to prosecute or defend an appeal, the judge may dismiss the appeal")). Taking account of the informality and added flexibility of arbitration proceedings, we do not discern arbitr ary or unfair action in the arbitrator's requirement that Mr. Uliano appear for cross-ex amination at the scheduled hearing. We agree with the agency that the ar bitrator's dismissal of Mr. Uliano's grievance was not arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Further, it was not obt ained without procedures required by law, rule or regulation having05-3326 8 been followed, and is not unsupported by substantial evidence. See §7703(c). The arbitrator's decision is affirmed. No costs.