### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 08-10730

VOLANDA WOODS, Plaintiff–Appellee,
v. PAM TRANSPORT INC-LU, Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas

No. 3:07-CV-605

Before OWEN and HAYNES, Circuit Judges. * PER CURIAM: ** Volanda Woods initiated this action in the district court seeking enforcement of an arbitration award she obtained against her former employer, P.A.M

. T r a n s port, Inc.-L.U. (P.A.M.), on claims arising out of an on-the-job injury. Woods initiated the arbitration proce e d i n gs and sought compensation pursuant to the P.A.M. Transport Texas Injury Plan (Plan), an ERISA plan that U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 23, 20 11 Lyle W . Cayce Clerk

This cas e is bein g dec ide d by quor um due to the dea th of Judge Willi am L. Gar wo od *
on July 1 4, 2011. 28 U .S .C. § 46(d).

Purs uant to 5 T H C IR

. R. 47.5 , the court has det erm ined that this opi nion sho uld not * * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 08-10730 Document: 00511580160 Page: 1 Date Filed: 08/23/2011No. 08-10730

provides for mandatory arbitration of all on-the-job injury claims. The district court granted Woods’s request for enforcement of the arbitration award after modifying the award of pre-judgment interest. P.A.M. appeals several aspects of the district court’s order. We affirm in part, reverse in part, and remand for further proceedings. I P.A.M. initially contended that this court lacked subje c t m a tter jurisdiction, asserting that there was no diversity of citizenship, the only basis

on which Woods now asserts jurisdiction. P.A.M. has since conceded that there is diversity of citizenship, and we granted leave to amend to reflect that fact. 1 I n the district court, P.A.M. sought to void the arbitrator’s awa r d , challenging the arbitrator’s power to decide the parties’ underlying dispute. P.A.M. asserts that the district court abused its discretion in denying its request for discovery from the American Arbitration Association (AAA) for the purpose of determining when and for what reason the arbitrator was allegedly removed from the AAA’s Roster of Neutrals (Roster). P.A.M. alleges that the arbitrator

was removed f

r o m t he Roster sometime after the arbitration proceedings concluded but before the arbitrator entered the award. P.A.M. further asserts that if the arbitrator was in fact not on the Roster at this time, he exceeded his
powers under the Plan, requiring vacatur of t h e award pursuant to 9 U.S.C. § 10(a)(4). The district court denied P.A.M.’s discovery request, stating that P.A.M.’s assertion that the arbitrator was r e m o v e d f r om the Roster alone, without any additional specifics, was not sufficient to support its discovery request and that, in any event, P.A.M. had not demonstrated that the arbitrator’s removal from the Roster would provide sufficient grounds for vacatur.

See 28 U. S. C. § 1653 (“ De fec tive allegat ions of juris dic tio n may be ame nded , upon 1 ter ms , in the tri al or app ellat e c ourt s. ”)

. 2 Case: 08-10730 Document: 00511580160 Page: 2 Date Filed: 08/23/2011No. 08-10730

We review a district court’s discovery rulings for abuse of discretion and 2 “will affirm such decisions unless they are arbitrary or clearly unreasonable.” 3 “The party seeking discovery bears the burden of showing its necessity.” 4 In district court, P.A.M. consistently asserted, on information and belief, that the arbitrator w a s removed from the Roster prior to entering the award. But, P.A.M. does not provide any additional specifics beyond this assertion. In particular, although acknowledging that the Roster is not publicly available and alleging that the AAA refused to provide P.A.M. with information concerni n g the Roster, P.A.M. has not provided even the vaguest indication in district court or

on appeal of how it may hav e l e a r n e d t hat the arbitrator was in fact removed from the Roster. “Despite having been given time to do so, [P.A.M.] has brought forward nothing to show that its claim [that the arbitrator was not on the Roster when he entered the award] had any semblance of substance or that it was even asserted in good faith. The claim never achieved any more dignity than that of

a conclusory statement in an unverified answer [and other court memoranda].” 5 Moreover, although P.A.M. argued this issue from the inc eption of these proceedings, the record indicates that it did not move for discovery until all the party documents were filed (including Wo o d s ’ s r esponse and P.A.M.’s reply),

even though the parti e s previously jointly moved to extend certain deadlines specifically in order to allow P.A.M. to seek discovery of the matter. “The loser

Wiw a v. RoyalD utch Petrol eum Co. , 392 F.3d812 , 817 (5t h Cir

. 2004)

. 2
Id. ( inte rnal quot atio n m ark s om itt ed)

. 3
Free ma n v . Uni ted Sta tes , 556 F.3d326 , 341 (5t h Cir

. 2009)

. 4
See Imp eri al Ethiop ia n Go v’ t v. Baru ch- Foster Corp

. , 535 F.2d 334, 337 (5t h Cir. 1976) 5 (s tat ing that a par ty se ek ing vacat ur of an arbit rat ion aw ard bas ed on allegat ions of a dis qualif

ying con n e c t i o n betw een the opp os ing par ty and the arbit rat or doe s not have an “unqua lif

iedright to any dis cover y it reques ted , lim ite d by only relevanc y,” part icula rly in a
sum mar y pr oce edi ng wh ere the par ty had fai led to “co me for wa rd wi t h a n y thing tend ing to sho w thatt he clai m wa s ass ert ed in goodf aith and forany reas on othe r than del ay”)

. 3 Case: 08-10730 Document: 00511580160 Page: 3 Date Filed: 08/23/2011No. 08-10730

in arbitration ca n n o t freeze the confirmation proceedings in their tracks and indefinitely postpone judgment by merely requesting disc o v e ry.” In light of 6 P.A.M.’s inability to produce any information, however vague, substantiating its assertion, its unexplained delay in seeking discovery, and the summary nature of proceedings to confirm an arbitration award, we decline to conclude that the district cour t a b u s e d its discretion in denying P.A.M.’s discovery request, 7 particularly considering the strong policy favoring expeditious enfor c e m e n t of arbitration awards. 8 II P

. A.M. also contests the amount of the district court’s award of pre- and post-judgment interest. We agree that the district court erred in its calculation of both pre- and post-judgment interest and reverse th a t p o rtion of the judgment. A The arbitrator’s written decision awards damages by category, including compensation for past and future medical expenses, mental anguish, pain and suffering, physical impairment, and lost e a r ning capacity. It further provides for an award of “prej u d g ment interest for past pain and suffering under section 304, Subchapter B, of the Texas Finance Code, which autho r izes prejudgment interest in personal injury cases.” In confirming t h e a w a r d, however, the district court awarded pre-judgment interest on all “past damages

Id. 6
See Lyeth v. Chrys le r Corp

. , 929 F.2d 891, 899 (2d Cir. 1991) (s tat ing that the dis tri ct 7
cour t did not err in obs erving that the dis cover y requ es ts aim ed at the AAA we re att em pt s to “engag[ e] in a fis hing expe dit ion in an att em pt to d e t e rm ine if ther e is so me bas is, how ever far fet ched , to pr os ecut e a clai m of bias ”) ; see also Free ma n v. Uni ted States , 556 F.3d 326, 341 (5t h Cir

. 2009) ( “The par ty se ek ing d isc overy bear s the burd en of sho wi ng it s nece ss ity. ”)

. Posi tiv e Softw ar e Solu tions v. New Century Mo rtg. Corp

. , 476 F.3d 278, 280 (5t h Cir. 8 2007) (en banc) (“ To ass ure that arbit rat ion se rves as an eff icie nt and cos t- eff

ect ive alte rnat ive to litigatio n, and to hold par tie s to thei r agree me nts to arbit rat e, the FAA narr ow ly res tri cts judic ial revie w of arbit rat or’ s aw ard s. ”)

. 4 Case: 08-10730 Document: 00511580160 Page: 4 Date Filed: 08/23/2011No. 08-10730

awarded” rather t h a n only on the amount attributable to past pain and suffering. P.A.M. argues that the d i s trict court was required to enforce the arbitrator’s award as written and t h e r e fore erred in its pre-judgment interest calculation. Woods, on the other hand, argues that under the provision of Texas law cited by the arbitrator, an award of pre-judgment interest in personal injury actions must be awarded as a matter of course on the entire amount of damages for past injury, not just pain and suffering. Woods asserts a number of grounds on which she claims the district court was authorized to correct this error. Woods first argues that the district court had the authority to correct the arbitrator’s alleged error under 9 U.S.C. § 13, which provides t hat a judgment affirming, modifying, or correcting an arbitration award has “the same force and effect” as, and is “subject to all the provisions of law relating to, a judgment in

an action,” and “may be enforced as if it had bee n r endered in an action in the court in which it is entered.” W o o d s contends this provision authorizes the 9 district court “to enter a j u d gment that complies with [the] law, as if the judgment had been rendered by that court, and not an arbitrator.” This

a r gu m e nt is unpersuasive. Under Woods’s broad interpretation of § 13, a distri c t court would be authorized to correct any legal er r o rs committed by the arbitrator. But it is well settled that the district court lacks this authority; its review of arbitration awards is “‘extraordinarily narrow,’” and an arbitration 1 0 award is not subject to vacatur or modification merely because of the arbitrator’s

error or misunderstanding with respect to the law. Section 13 merely provides 1 1

9 U. S. C. § 1 3(c ). 9
Ha rri s v. Park er Coll

. of Chir opr ac tic , 286 F.3d 790, 79 2 ( 5 t h Cir. 2002) (quo ting 1 0 Antw inev . Prude ntia l Bach e Secur iti es, Inc. , 899 F.2d410 , 413 (5t h Cir

. 1990) ).

See Ha ll Stree t As soc s. v. Ma ttel, Inc. , 552 U. S. 576, 584–86 ( 2 0 08) (ho ldi ng that 9 1 1 U. S. C. §§ 10 a nd 11 p rovid e t he exclus ive ground s uponw hich an a rbit rat ion aw ard may be 5 Case: 08-10730 Document: 00511580160 Page: 5 Date Filed: 08/23/2011No. 08-10730

that a judgment enforcing an arbitration award has the same effect as any other district court judgment; it does not independently authorize the district court to correct an arbitrator’s erroneous legal ruling. Alternatively, Woods argues that the district court properly refused to affirm the arbitrator ’ s a w a rd of pre-judgment interest because the arbitrator manifestly disregarded the law. This court p r eviously recognized “manifest disregard fo r t h e l a w ” as an additional, nonstatutory basis for vacating an arbitrator’s award. However, in light of the Supreme Court’s decision in Hall 1 2 Street Associates, L.L.C. v. Mattel, Inc. , which “restricts the groun d s f o r v a c atur 1 3
to those set forth in § 10 of the [FA A],” we have concluded that “manifest disregard of the law is no longer an independent ground for vacating arbitration awards under the FAA.” M o r e over, we have never explicitly held that 1 4 “manifest disregard for the la w ” could provide an additional ground for modification of an award, and even if we had, Hall Street restricts the grounds for modification of an award to § 11 of the FAA, just as it restricts the grounds f o r v a c a t u r to those set forth in § 10. Thus, under Hall Street and Bacon , 1 5 “manifest disregard for the law” is not an independent ground for either vacating or modifying arbitration awards under the FAA. Finally, Woods argues that the district court acted properly in modifying the arbitrator’s award of pre-j u d g ment interest under 9 U.S.C. § 11(a) and (c),

vacat ed or mo dif

ied , and that the par tie s may not agree to expand the sc ope of judic ial revie w to allow vac aturorm odi fic atio n ba se d on the arbit rat or’ s legal err or)

.

See Gl ove r v. IBP, Inc. , 334 F.3d471 , 474 (5t h Cir . 2003) (quot ing Ha rri s , 286 F.3d 1 2 at 792)

. 552 U .S

. at 584- 86.

1 3 Citigr oup Gl oba l Ma rke ts, Inc. v. Baco n , 562 F.3d 349, 350 (5t h Cir. 2009) (c itin g Ha ll 1 4 Stree t A sso cs. , 552 U. S. at584 ).

Ha llStre et A sso cs. , 552 U. S. at584 , 586. 1 5 6 Case: 08-10730 Document: 00511580160 Page: 6 Date Filed: 08/23/2011No. 08-10730

w hich allow for modification or correction where (1) “there was an e v i d e n t material miscalculation of figures,” or (2) “the award is imperfect in matter of 1 6 form not affecting the merits of the controversy.” Both contentions lack merit. 1 7 First, we have held that “an ‘evident material [mis]calculation’ occurs ‘where the record that was before the arb itrator demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates strong reliance on that mistake by the arbitrator in making his award.’” The award in this case does 1 8 not contain a ma t e r i a l miscalculation under this standard, irrespective of whether the arbitrator committed a legal error. Second, the a w a r d of prejudgment interest is not merely a matter of form, but goes to the m e r its of the controversy. 1 9 For the reasons discussed above, the district court erred in modifying the arbitrator’s award of pre-judgment interest on past pain and suffering. B The a rb i trator summarily awarded post-judgment interest “at the maximum rate allowed by law beginning from the issuance of this Award until the Award is satisfied

. ” Accordingly, the arbitrator largely left the matter of post-judgment interest to the court enforcing the award. In turn, the district court awarded post-judgment interest at the maximum rate allowed b y Texas state law, or 7.25%. P.A.M. argues that the district court erred in looking to Texas law rather than federal law to determine the applicable interest rate. As noted above,

9 U. S. C. § 1 1(a)

. 1 6
Id. § 11(c ). 1 7
Pres tige Ford v. Ford De al er Com puter Serv s. , Inc. , 324 F.3d 391, 396 (5t h Cir. 2003) 1 8 (quo ting Va le ntineSuga rs, Inc. v . Do nau Corp

. , 981 F.2d210 , 214 (5t h Cir

. 1993) ).

See Wes t Vi rgin ia v. Uni ted States , 479 U. S. 305, 310 (198 7) (“ Prejud gmen t inte res t 1 9 is an e lem ent of com ple te com pens atio n.” ( cit atio n o mi tte d) ). 7 Case: 08-10730 Document: 00511580160 Page: 7 Date Filed: 08/23/2011No. 08-10730

under 9 U.S.C. § 13, a judgment of a federal court confirming, modifying, or correcting an arbitration award has t h e “the same force and effect” as, and is “subject to all the provisions of l a w relating to, a judgment in an action,” and “may be enforced as if it had been rendered in an action in the court in which it is entered.” Unlike with pre-judgment interest, th e p o s t

-j u d g m e n t i nt e r e s t r ate

2 0 for all judgments entered in federal courts, including those in diversity cases, is governed by 28 U.S.C. § 1961. Pursuant to that statute, the post-judgment 2 1 interest rate is “equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for t h e calendar week preceding the date of the judgment.” In this cas e , t h e 2 2 district court’s judgment was entered on February 19, 2008, and the applicable rate appears to be 2.04%, t h o ugh we leave this to the district court to 23 determine in the first instance. Accordingly, the district c o u r t e r red in applying Texas law to calculate post-judgment interest. On rema n d, the district court should recalculate the amount utilizing the appropriate rate. * * * The district court’s judgment is REVERSED IN PART, and this matter is REMANDED for further proceedings consistent with this opinion.

9 U. S. C. § 1 3(c ). 2 0
Tra ve le rs Ins. Co. v. Lil jebe rg Enters , Inc. , 7 F.3d 1203, 1209 (5t h Cir. 1993) ; see also 2 1 Pars ons & Whi ttemo re Al a. Ma ch. & Serv s. Corp

. v. Yea rgin Constr. Co. , 744 F.2d 1482, 1484 (11t h Cir. 1984) (s tat ing that “a d i s t r i ct cour t judgm ent aff irm ing an arbit rat ion aw ard is governe d by s tat utor y p os t- judgm ent inte res t rat es ”)

. 28 U. S. C. § 1 961( a). 2 2
Board of Go vernor s of the Fed. Rese rve Sys ., Mar ke t Yie ld on U. S. Treas ury 2 3 S e c u r i t i e s a t 1

- y e a r C o n s t a n t M a t u r i t y , Q u o t e d o n I n v e s t m e n t B a s i s , htt p: // fed eral res erve. gov/r eleas es /h15 /d ata. htm ( las t upd atedAp r. 13, 201 1). 8 Case: 08-10730 Document: 00511580160 Page: 8 Date Filed: 08/23/2011No. 08-10730

PRISCILLA R. OWEN, Circuit Judge, concurring: I fully join the panel quorum’s opinion and judgment. I write further only to set forth an additional basis for affirming the dis t r i ct court’s decision to enforce the arbitrator’s award, with the exception of th e d istrict court’s determinations regarding the pre- and post-judgment interest issues. Even if P.A.M. c o u l d demonstrate conclusively that the arbitrator was removed from the AAA’s Roster before th e f inal award was entered, P.A.M. would not be entitled to vac a t u r o n that basis. Under 9 U.S.C. § 10(a)(4), an arbitration award may be vacat e d “w h e r e th e a rb i t r a t o r s e xceeded their powers.” “Arbitration is a matter of con t r a c t : T h e powers of an arbitrator are dependent on the provisions under which the arbit r a t o r s were appointed.” 1 “Where arbitrators act ‘ c ontrary to express contractual provisions,’ they have

e x c e e d e d their powers.” “If the contract creates a plain limitation on the 2 authority of an arb i trator, [this court] will vacate an award that ignores the limitation.” “Where limitations o n the arbitrator’s authority are uncertain or

3 ambiguous, however, ‘they will be construed narrowly.’” As “the FAA narrowly 4 restricts judicial review of arbitrators’ awards,” “[a] reviewing court examining 5

w h e t h er arbitrators exceeded their powers must resolve all doubts in fav o r o f

Ap ac he Bohai Corp

. LDC v. Texac o China BV , 480 F.3d 397, 401 ( 5 t h Cir. 2007) 1 (int erna l quot atio n mar ks om itt ed) (quo ting Brook v. Peak Int’l , 294 F.3d 668, 6 7 2 ( 5 t h C ir. 2002) ).
Id. (quo ting De lta Qu een Steam boa t Co. v. AF L -CIO , 889 F.2d 599, 604 (5t h Cir. 2 1989) ).
Id.

3
Id. at 402 (quo ting Ac tion Indus. , Inc. v. U. S. Fid. & Gu ar . Co. , 358 F.3d 337, 343 (5t h 4 Cir. 200 4))

. Posi tiv e Softw ar e Solu tions , Inc. v. New Century Mo rtg. Corp

. , 476 F.3d 278, 280 (5t h 5 Cir. 200 7) (enban c)

. 9 Case: 08-10730 Document: 00511580160 Page: 9 Date Filed: 08/23/2011No. 08-10730

arbitration.” The award should be confirmed if the arbitrator is arguably acting

6 within the scope of his authority. 7 The Plan requ i r e s t h at the arbitration be “administered by the [AAA] under its then-c u rrent National Rules for the Resolution of Employment Disputes

. . . before a n a rb i t r a t o r from the [AAA].” It is at best ambiguous whether this language r equires that an arbitrator who was on the Roster throughout the duration of the arbitration proceedings also be on the Roster at the time he enters the award. The plain terms require merely that the arbitration be administered by an arbitrator from the AAA. The meaning of the phrase “an arbitrator from the [AAA]” does not clearly require that an arbitrator selected from the Roster remain on that Roster until after the arbitrator’s decision is issued. The ph r a s e could reasonably be i n t e r p r eted to require that the arbitrator be selected pursuant to the AAA’s rules. It is far from clear that this provision states a limitation on the authority of the a rb i t r ator in the unexpected event that he is removed from the Roster after the arbitration proceedings have concluded. 8 Even if P.A.M. is co r r e ct that “an arbitrator from the [AAA]” specifies ongoing qualification requirement s rather than a selection method, it has still failed to demonstrate that “an arbitrator from the [AAA]” means exclusively an

Ap ac he Bohai , 480 F.3dat402 ( quot ing Ac tion Indus. , 358 F.3dat343 ). 6
Tea ms ters Loc alN

o. 5 v

. Form osaPl as tics Cor p. , 363 F.3d368 , 371 (5t h Cir

. 2004)

. 7
See Zei le r v. De itsc h , 5 0 0 F .3d 157, 166–167 (2d Cir. 2007) (c oncl udin g that an 8 arbi t r a t i o n agree me nt that sp ecif ical ly lis ted thr ee arbit rat ors wh o we re to com pos e the arbit ra t i o n p a n e l did not “s tat e a lim itat ion on the autho rit y of the pane l to cont inue in the unexpe cte d event that one of the me mbe rs might res ign”) ; but see El Vo cer o De Puerto Ric o v. Uni on D e P

e r i o dis tas , 532 F. Sup p. 13, 14–16 (D .P. R. 1981) (c oncl udin g, aft er cons ide ring extr ins ic evide nce to asc ert ain the parti es ’ inte nt, that the par tie s agree d that the arbit rat or be an em plo yee of the Concil iati on and Arbit rat ion Bureau and that this pr es upp os ed that the requ irem ent be mai ntain ed at all per tine nt tim es beca use it wo uld be illogic al to ins ist on this mat terat the tim e of se lect ion but not at “s uch im por tant occ asi ons as when [t he arbit rat or] we ighs the evide nce, m ak es up hi s mi nd and iss ues hi s aw ard”)

. 10 Case: 08-10730 Document: 00511580160 Page: 10 Date Filed: 08/23/2011No. 08-10730

arbitrator listed on the Roster. The phrase could also be understood to require t h a t t h e arbitrator’s continued assignment to this particular arbitration b e sanctioned by the AAA, and P.A.M. has presented no evidence that removal from the Roster automatically means t h a t the AAA no longer sanctions the arbitrator’s continued service on previously appointed panels. In fact, the 9 AAA’s Roster management practices indicate that the Roster is primarily used for future arbitration assignments. The AAA rotates arbitrators off the Roster regularly for a variety of reasons, some of which have nothing to do with the 1 0 particular arbitrator but rather respond to regional needs or involve the need for arbitrators with a focus in a particular area of law. The Plan expressly i n c o r p o r ates the rules of the AAA. This court has previously held, in addressing an arbitrator’s qualification under NASD rules, that “[i]n the absence of a specific agreement to the contrary, determining [an arbitrator’s] qualifications and eligibility is a matter left to the NA S D

. ” The 1 1 AAA’s R u l e s p rovide that disqualification decisions are at its discretion. 1 2

See Uni ted Tra nsp . Uni on v. Ga tew ay W. Ry. Co. , 284 F.3d 710, 713 (7t h Cir. 2002) 9 (s uggest ing that the Nat ional Me diat ion Board c o u l d r e m ove an arbit rat or fr om its Rost er wh ile not rem oving h im f rom any exis ting pane ls)

. Acco rd ing to the AAA, an arbit rat or may be rem oved for variou s reas ons , inclu ding: 1 0 (1) car e er change requ iring res ignati on; (2) fai lure to me et all tra ining requ irem ents ; (3) unsu cce ss ful par tic ipat ion or per for man ce in tra ining pr ogram s; (4) a dea rth of cas es in the arbit rat or’ s areaof

exp ert ise orgeo grap hicallo cat ion; ( 5) unp rof es sio nal cond uct ; (6) failur e to mak e app rop riat e and suf fic ient dis clos ures on a cas e; (7) fai lure to man age the arbit rat ion pr oce ss eff

ect ively and eff

icie ntly; (8) h i g h e r fee s or inco nsi st ent billi ng pr act ices ; and (9) fai lure to act in acc ord ance wi th AAA Rules and pr oce dur es . India Johns on, Rea li ty vs . My th: The Truth Abo ut Ma nagem ent of the AA A Com me rci al Roste r (M arc h 2003) , htt p: // ww w. adr .or g/s i.a sp ?id =352 3.

Bulko v . Mo rgan Stanl ey DW Inc. , 450 F.3d622 , 626 (5t h Cir

. 2006)

. 1 1
See Ame ric an Arbit rat ion A sso ci atio n, Emp loym ent Arbit rat ion Rules and Me diat ion 1 2 Proc edur es , Rule 16(b ) (Jul y 1, 2006) , htt p: // ww w. adr .or g/s p. asp ?id =361 0 5 ( “ Up on objec tio n of a par ty to the cont inued se rvice of an arbit rat or, or on its ow n init iati ve, the AAA sha ll det erm ine wh ethe r the arbit rat or sho uld be dis qualif ied unde r the ground s se t out above, and sha ll info rm t he par tie s of its d ecis ion, w hich dec isi on sha ll be conc lus ive. ”)

. 11 Case: 08-10730 Document: 00511580160 Page: 11 Date Filed: 08/23/2011No. 08-10730

Because the Plan d o e s n o t clearly speak to this specific situation, the AAA’s Rules are relevant. Under the AAA’s Rule 12(b), the arbitrator must be 1 3 qualified when designated. Rule 16, in turn, lists the g r o u n ds for 1 4 disqualification, which include: (1) partiality or lack of independence; (2) inability to perform duties with diligence and in good faith; and (3) any other grounds provided by applicable law. Notably, r emoval from the Roster alone 1 5 is no t a n available ground for disqualification of a previously appointed arbitrator. Accordingly, P.A.M. has not demonstrated that the a rbitrator was not sanctioned by or “from the [AAA]” at the time he entered the award, even if he was removed from the Roster. The AAA’s r e f u s a l t o rule on the matter further supports this conclusion.

Id

. R u l e 1 (“ The par tie s sha ll be dee me d to have mad e thes e rule s a par t of thei r 1 3 arbi t r a tio n agree me nt wh enever they have pr ovide d for arbit rat ion by the Ame ric an Arbit rat ion Ass ocia tio n . . . . ”)

.

Id. Rule 12(b). 1 4
Id. Rule 16( a). 1 5
12 Case: 08-10730 Document: 00511580160 Page: 12 Date Filed: 08/23/2011