PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2026

_____________

JAMES D. FREEMAN,

Appellant

v.

PITTSBURGH GLASS WORKS, LLC; PGW AUTO 

GLASS, LLC

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-10-cv-01515

District Judge: The Honorable Arthur J. Schwab

Argued January 16, 2013

Before: SMITH, CHAGARES, and BARRY,

Circuit Judges

(Opinion Filed: March 6, 2013)
2

Bruce C. Fox [ARGUED]

Obermayer, Rebmann, Maxwell & Hippel

BNY Mellon Center

500 Grant Street

Suite 5240

Pittsburgh, PA 15219

Counsel for Appellant

David S. Becker

Jeffrey J. Mayer [ARGUED]

Freeborn & Peters

311 South Wacker Drive

Suite 3000

Chicago, IL 60606

Robert B. Cottington

Cohen & Grigsby

625 Liberty Avenue

Pittsburgh, PA 15222

Counsel for Appellees

________________

OPINION

________________

SMITH, Circuit Judge.
3

James Freeman recently lost an arbitration dispute. 

Soon thereafter, he discovered that the arbitrator had 

received contributions for a judicial campaign from PPG 

Industries, the defendants’ minority owner. Freeman filed 

a motion to vacate the arbitration award, but he 

conveniently failed to mention that the law firm

representing him had contributed a far greater amount to 

the same campaign. The District Court denied the 

motion, and we will affirm.

I

Freeman was a director of operations at PPG Auto 

Glass until his firing in 2008. At the time of Freeman’s 

firing, PPG Auto Glass was a division of PPG Industries. 

Since then, PGW Auto Glass and Pittsburgh Glass 

Works—collectively known as PGW—have assumed 

PPG Auto Glass’s liabilities. Significantly, PPG 

Industries maintains a 40-percent interest in PGW.

After losing his job, Freeman sued PGW in the

District Court for the Western District of Pennsylvania. 

Freeman was sixty years old at the time of his firing, and 

he brought a claim under the Age Discrimination in 

Employment Act, 29 U.S.C. § 621 et seq. The case was 

assigned to U.S. District Judge Arthur Schwab. At the 

close of discovery, Judge Schwab held a settlement 

conference at which the parties entered a binding 

arbitration agreement. The court directed the clerk to 

mark the case closed. See Supp. App. 11 (“[T]his case 
4

shall be marked CLOSED.”).

1

As part of the agreement, both sides listed three 

potential arbitrators, and Maureen Lally-Green appeared 

at the top of both lists. Lally-Green is an experienced 

jurist who served as a judge on the Pennsylvania Superior 

Court for over a decade. Two years before her retirement 

in 2009, she made an unsuccessful bid for a seat on the 

Pennsylvania Supreme Court. She now works in private 

practice and teaches at Duquesne University School of 

Law.

On August 22, 2011, the parties spoke with LallyGreen for the first time. She reminded them, “you all 

know that it’s a small legal community here,” and she 

acknowledged that she “knew some people at PPG 

[Industries],” the minority owner of PGW. App. 5e to 5f.

She also told the parties that she taught a seminar on 

labor law. According to PGW, she explained that she 

taught the seminar with Joseph Mack, PPG Industries’

senior employment attorney. See Supp. App. 65; App. 8c. 

But Freeman maintains that she did not mention Mack or 

reveal anything else about her relationship with PPG 

Industries. See App. 7a to 7b. Undeterred, the parties 

proceeded with Lally-Green as their arbitrator.

 1 The parties filed separate appendices. We refer to 

Freeman’s appendix as “App.” and to PGW’s appendix 

as “Supp. App.”
5

Lally-Green conducted a hearing near the end of 

2011. Each side had a day to present evidence. By all 

accounts, the proceeding was fair and thorough—neither 

party raises any issue concerning the arbitration hearing

itself. One month later, Lally-Green issued a lengthy 

opinion that rejected Freeman’s discrimination claim. 

She concluded that Freeman lost his job because he “had 

limited recent sales experience . . . [and] received 

average performance ratings in a poorly performing 

region.” Supp. App. 54.

Three months later, Freeman filed a motion in the 

District Court to vacate Lally-Green’s arbitration 

decision. Whether born of sour grapes or a desire for 

justice, this motion claimed that Lally-Green had failed 

to disclose campaign contributions that she had received 

from PPG Industries and its employees during her 

Supreme Court bid. These contributions totaled $4,500.2

 2 Lally-Green received $2,000 from PPG 

Industries, $1,000 from Mack, the company’s senior

employment attorney, $500 from its general counsel and 

senior vice president, $500 from its vice president of 

government affairs, and $500 from its director of 

government affairs. See App. 3b.

To put this in perspective, Lally-Green raised over $1.7 

million during her unsuccessful campaign. See Supp. 

App. 85. The motion also claimed that Lally-Green had 
6

failed to disclose her teaching relationship with Mack. In 

light of these nondisclosures, Freeman urged the District 

Court to vacate the arbitration. He argued that LallyGreen was evidently partial in violation of 9 U.S.C. 

§ 10(a)(2) and that she had fraudulently induced the 

arbitration agreement.3

Freeman’s motion omitted an important fact. As 

PGW soon pointed out, Lally-Green had received more 

than five times as much money—roughly $26,000—from 

the law firm that represented Freeman during the 

arbitration.4

 3 According to the relevant statutory language, 

“[i]n any of the following cases the United States court in 

and for the district wherein the award was made may 

make an order vacating the award upon the application of 

any party to the arbitration—(1) where the award was 

procured by corruption, fraud, or undue means [or]; (2) 

where there was evident partiality or corruption in the 

arbitrators, or either of them . . . .” 9 U.S.C. § 10(a).

This firm continues to represent Freeman on 

appeal. To prove Lally-Green’s impartiality, PGW cited 

the two-sided nature of the contributions as well her 

4 Lally-Green received $20,000 from the law firm 

of Obermayer, Rebmann, Maxwell & Hippel and $6,153 

from three attorneys at the firm. See App. 3b. Freeman’s 

counsel of record on appeal apparently did not contribute 

to the campaign.
7

equanimity during the proceedings. PGW also argued 

that the District Court lacked jurisdiction to consider the 

motion because it had closed the original case.

The District Court saw “no reason why the [ ] 

challenge [could] not occur in the same case as the 

original proceeding.” App. 3g n.1. As for Freeman’s 

partiality and fraud claims, the court concluded that 

Lally-Green’s nondisclosures were immaterial and 

insubstantial. The court thus denied Freeman’s motion, 

and Freeman filed a timely notice of appeal.

Freeman now maintains that Lally-Green was 

evidently partial and that she fraudulently induced the 

arbitration agreement. For its part, PGW denies these 

allegations and raises two threshold arguments—namely, 

that the District Court lacked jurisdiction to consider 

Freeman’s motion and that Freeman waived his partiality 

objection. We turn to these arguments.

II

We must first decide whether the District Court 

had jurisdiction to consider Freeman’s motion to vacate. 

The court indisputably had federal-question jurisdiction

to consider his initial complaint. 28 U.S.C. § 1331. But in

PGW’s view, the court lost jurisdiction once it closed the 

case and sent the parties to arbitration. If so, the court

would need a separate jurisdictional basis to consider 
8

Freeman’s motion to vacate.

5

Federal courts have long distinguished dismissals 

from administrative closings. The two procedures have 

different practical and jurisdictional effects. The Supreme 

Court discussed the effects of a dismissal in Green Tree

Financial Corp. v. Randolph, 531 U.S. 79 (2000). There, 

the district court had dismissed the plaintiff’s claims with 

prejudice after referring the parties to arbitration. The 

Supreme Court considered whether that dismissal was an 

Absent a separate basis, the 

court lacked jurisdiction and we must remand for 

dismissal. See Packard v. Provident Nat’l Bank, 994 F.2d 

1039, 1050 (3d Cir. 1993). The problem with this 

argument is that it relies on a faulty premise. As will 

soon be clear, the District Court never lost jurisdiction 

because it administratively closed the case.

 5 The District Court lacked any independent 

federal-question jurisdiction to consider Freeman’s 

motion. His motion challenged the arbitration based on 

the Federal Arbitration Act, which “does not create any 

independent federal-question jurisdiction under 28 

U.S.C. § 1331 or otherwise.” Moses H. Cone Mem’l 

Hosp. v. Mercury Constr., 460 U.S. 1, 25 n.32 (1983). 

The parties disagree whether the District Court had 

diversity jurisdiction under 28 U.S.C. § 1332, but we 

need not decide that issue because, as we explain, the 

District Court retained federal-question jurisdiction.
9

appealable final order under the Federal Arbitration Act. 

It noted that the “order plainly disposed of the entire case 

on the merits and left no part of it pending before the 

court.” Id. at 86. It then stated that the Federal Arbitration 

Act “permit[s] parties to arbitration agreements to bring a 

separate proceeding in a district court to enter judgment 

on an arbitration award once it is made (or to vacate or 

modify it).” Id.

Our cases have extended the Supreme Court’s 

analysis. Two years after Green Tree, we held that any 

order that dismisses a case for arbitration is final—even 

when the district court dismisses the case without 

prejudice. See Blair v. Scott Specialty Gases, 283 F.3d 

595, 602 (3d Cir. 2002). We noted that “[t]he Green Tree

decision draws a distinction between dismissals and 

stays, but does not draw any distinctions within the 

universe of dismissals.” Id.; see Morton Int’l v. A.E. 

Staley Mfg., 460 F.3d 470, 477–78 (3d Cir. 2006). As a 

result, anyone who wishes to challenge an arbitration 

after a dismissal must bring a separate action. See Green 

Tree, 531 U.S. at 86.

By contrast, administrative closings are not final 

orders. See WRS, Inc. v. Plaza Entm’t, 402 F.3d 424, 429 

(3d Cir. 2005). We first discussed administrative closings 

in Penn West Associates v. Cohen, 371 F.3d 118 (3d Cir. 

2004). In that case, the parties had reached a tentative 

settlement agreement. The district court then ordered the 
10

clerk to mark the case “closed.” Id. at 121. We concluded 

that the district court had administratively closed the 

case. For that reason, the court should have reopened the 

case after the agreement fell apart. 

District courts often use administrative closings to 

prune their overgrown dockets. Id. at 128. The practical 

effect is “to remove a case from the court’s active docket 

and permit the transfer of records associated with the 

case to an appropriate storage repository.” Lehman v. 

Revolution Portfolio L.L.C., 166 F.3d 389, 392 (1st Cir. 

1999). Administrative closings are particularly useful “in 

circumstances in which a case, though not dead, is likely 

to remain moribund for an appreciable period of time.”

Id. 

Most importantly, administrative closings have no 

effect on the district court’s jurisdiction. Penn West, 371 

F.3d at 128. As the First Circuit explained, 

“[a]dministrative closings comprise a familiar, albeit 

essentially ad hoc, way in which courts remove cases 

from their active files without making any final 

adjudication.” Lehman, 166 F.3d at 392. This means that 

a court may reopen a closed case—either on its own or at 

the request of either party—even if it lacks an 

independent jurisdictional basis for doing so. See Fla.

Ass’n for Retarded Citizens, Inc. v. Bush, 246 F.3d 1296, 

1298 (11th Cir. 2001) (“Designating a case ‘closed’ does 

not prevent the court from reactivating a case either of its 
11

own accord or at the request of the parties.”). There is 

substantial unanimity on this issue. See Dees v. Billy, 394 

F.3d 1290, 1294 (9th Cir. 2005) (“[T]hose circuits that 

have confronted the issue have unanimously [agreed] . . . 

that an administrative closing has no jurisdictional 

effect.”); Penn-Am. Ins. v. Mapp, 521 F.3d 290, 297 (4th 

Cir. 2008); cf. Green Tree, 531 U.S. at 87 n.2 

(concluding that if the district court had “entered a stay 

instead of a dismissal,” its order would not have been 

final).

It is clear that the District Court administratively 

closed Freeman’s case. On August 5, 2011, the parties 

agreed to arbitrate their dispute. The court ordered that 

the case “be marked CLOSED.” Supp. App. 11. After 

losing at arbitration, Freeman filed a motion to vacate the 

decision. The District Court denied that motion on April 

9, 2012 and stated that the case “shall REMAIN 

CLOSED.” Supp. App. 10. The court never mentioned a 

dismissal—either with or without prejudice. Indeed, the

order used language that closely matches the language in

our prior closing cases. Compare Penn West, 371 F.3d at 

121 (“IT IS HEREBY ORDERED that the Clerk of the 

Court mark the above captioned matter closed.”), and

WRS, 402 F.3d at 426 (“The Clerk shall accordingly 

mark the above-captioned case as closed.”), with Supp.

App. 11 (“[T]his case shall be marked CLOSED.”).

PGW nevertheless urges us to construe the District 
12

Court’s order as a final order—in effect, a dismissal—

because it “end[ed] the litigation on the merits and le[ft] 

nothing for the court to do but execute the judgment.”

Catlin v. United States, 324 U.S. 229, 233 (1945). In 

short, PGW wants us to ignore the text of the order and 

divine a contrary judicial intent. That we will not do.

Words matter. “The judicial process works best 

when orders mean what they say. Surprising 

interpretations of simple language—perhaps on the basis 

of a judicial intent not revealed in the words—

unnecessarily create complex questions and can cause 

persons to forfeit their rights unintentionally.” Adams v. 

Lever Bros. Co., 874 F.2d 393, 395 (7th Cir. 1989). 

Consistent with this principle, we have rejected previous

attempts to characterize an administrative closing as a 

final order in disguise, see Penn West, 371 F.3d at 129, as

have other circuits, see, e.g., Penn-Am. Ins., 521 F.3d at 

297.6

 6 The First Circuit has confronted the opposite 

issue: whether to recharacterize a so-called dismissal 

order as an administrative closing when the order was not 

final. See Lehman, 166 F.3d at 391–92 (concluding that 

the district court’s order was an administrative closing, 

despite the label “procedural order of dismissal,” because 

it was not a final judgment that could be corrected under 
13

Nor can we say that the closing somehow matured

into a final order. To be sure, “a district court can 

provide, in the text of its order, a built-in timetable under 

which the administrative closing may automatically 

expire, or, alternatively, mature into a final decision.”

Penn West, 371 F.3d at 128 (noting that an administrative 

closing did not become a final order despite the passing 

of three years). But the court’s order in this case 

contained no such timetable. And even if it had, such 

orders “are not entirely self executing. [They] must still 

be entered into the docket before they can be considered 

final orders of dismissal.” WRS, 402 F.3d at 428 (citing 

United States v. Indrelunas, 411 U.S. 216, 220 (1973)

(per curiam)).

Moreover, PGW misinterprets the District Court’s

order. Contrary to PGW’s suggestion, the order left more 

“for the court to do [than] execute the judgment.” Catlin, 

324 U.S. at 233. Indeed, by closing the case—rather than 

dismissing it—the court maintained an implicit 

supervisory role over the arbitration. This allowed the

parties to return to the same courtroom if problems arose

during the arbitration—for example, if the proposed

arbitrators were unavailable, one of the parties failed to

show up for arbitration, or even, as Freeman alleges, the 

 

Federal Rule of Civil Procedure 60). That issue is not 

before us.
14

arbitrator violated 9 U.S.C. § 10(a). To put it another 

way, the court’s order required it to act as a judicial 

backstop in the event that the arbitration fell apart. This 

practice is not only permissible but also laudable. When 

problems arise during arbitration, it often makes sense for 

the parties to return to a judge who is already familiar 

with the case. See Lehman, 166 F.3d at 392 (“We endorse 

the judicious use of administrative closings by district 

courts.”).7

We conclude that the District Court’s order—

which closed the case and sent the parties to arbitration—

did not deprive the court of jurisdiction. Because the 

District Court retained jurisdiction, it correctly entered a 

final order when it denied Freeman’s motion to vacate. In 

turn, we have jurisdiction to consider Freeman’s appeal 

 7 Although the order left more “for the court to do 

[than] execute the judgment,” Catlin, 324 U.S. at 233, 

that conclusion is not necessary to our holding. For the 

reasons already stated, the District Court would have 

retained jurisdiction even if the order otherwise 

resembled a final order. This is consistent with Kokkonen 

v. Guardian Life Insurance, 511 U.S. 375 (1994), which 

concluded that district courts are free to enforce 

settlement agreements if they “reserve[d] jurisdiction” to 

do so. Id. at 377, 379. We view administrative closings as 

a method of reserving jurisdiction.
15

under 9 U.S.C. § 16(a)(3) (“An appeal may be taken from 

. . . a final decision with respect to an arbitration that is 

subject to this title.”).

III

We must also decide whether Freeman waived his 

“evident partiality” claim under 9 U.S.C. § 10(a)(2). Both 

sides agree that he failed to raise any concerns during the 

arbitration proceeding. This suggests that he waived his 

claim. In his defense, Freeman contends that Lally-Green

deceived him and left him unaware of her true 

relationship with PPG Industries. He argues that he could 

not bring forth information that had been withheld from 

him. Whatever the merits of this contention, we will not

apply the doctrine of waiver to Freeman’s claim

because—ironically enough—PGW failed to invoke it in 

the District Court.

We generally refuse to consider issues that the 

parties have not raised below. Singleton v. Wulff, 428 

U.S. 106, 120 (1976) (“It is the general rule, of course, 

that a federal appellate court does not consider an issue 

not passed upon below.”). In a recent case, we noted that 

the appellant “did not raise [its] claim in the Bankruptcy 

Court,” and we refused to “consider new claims for the 

first time on appeal.” In re Reliant Energy Channelview 

LP, 594 F.3d 200, 209 (3d Cir. 2010). As the Supreme 

Court has pointed out, the doctrine of appellate waiver

“is essential in order that parties may have the 
16

opportunity to offer all the evidence they believe relevant 

to the issues.” Hormel v. Helvering, 312 U.S. 552, 556 

(1941).8

Despite this general rule, it is within our discretion 

to consider an issue that the parties did not raise below. 

See, e.g., Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 

2005) (“This Court has discretionary power to address 

issues that have been waived.”). The Supreme Court has 

explained that doing so is “left primarily to the discretion 

of the courts of appeals, to be exercised on the facts of 

individual cases.” Singleton, 428 U.S. at 121; see also

Chertkova v. Conn. Gen. Life Ins., 92 F.3d 81, 88 (2d Cir. 

1996). For example, we might consider a waived issue

when “the proper resolution is beyond any doubt” or 

when “injustice might otherwise result.” Singleton, 428 

U.S. at 121 (citations and quotation marks omitted); see 

also Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 

2007).

Our Court has yet to explain how waiver applies in 

 8 The doctrine of appellate waiver should not, of 

course, be confused with an identically named provision 

in many plea agreements. See United States v. Goodson, 

544 F.3d 529, 531 (3d Cir. 2008) (noting that an 

“appellate waiver” is a provision in plea agreements that 

“waive[s] [the] right to file a direct appeal”).
17

the arbitration context. PGW asserts that a party waives 

any partiality claim under the Federal Arbitration Act if 

the party failed to raise its concerns during arbitration. 

Other circuits would generally agree. See, e.g., Fid. Fed. 

Bank, FSB v. Durga Ma Corp., 386 F.3d 1306, 1313 (9th 

Cir. 2004) (applying waiver to claims under 9 U.S.C. 

§ 10(a)(2)); JCI Comm’ns v. Int’l Bhd. of Elec. Workers, 

Local 103, 324 F.3d 42, 51 (1st Cir. 2003) (same).

That said, most circuits have recognized that a 

blanket waiver rule is inappropriate. The Sixth Circuit 

concluded that waiver applies only if the party knew of 

the facts suggesting bias during the proceeding. See

Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1359 

(6th Cir. 1989) (applying waiver only if “[a]ll the facts 

now argued as to [the] alleged bias were known . . . at the 

time the [arbitrator] heard their grievances” (quoting 

Early v. E. Transfer, 699 F.2d 552, 558 (1st Cir. 1983))); 

cf. United Steelworkers of Am. Local 1913 v. Union R.R.

Co., 648 F.2d 905, 913 (3d Cir. 1981) (applying a similar 

rule to a private labor board acting under 45 U.S.C. 

§ 153). The Ninth Circuit extended this rule to situations 

where the party “has constructive knowledge of a 

potential conflict but fails to timely object.” Fid. Fed. 

Bank, 386 F.3d at 1313 (citing JCI Comm’ns, 324 F.3d at 

52). The court viewed this as a better approach “in light 

of [its] policy favoring the finality of arbitration awards.”

Id.
18

The Ninth Circuit’s approach has considerable 

merit: a party waives later challenges only if it “either 

knew or should have known of the facts indicating 

partiality.” Id. This approach allows a party to challenge 

an arbitration when it had no way of discovering the

arbitrator’s bias beforehand. At the same time, it

encourages investigation by making the parties

accountable for information they should have known. 

Moreover, it prevents the losing party from receiving a 

second bite at the apple. See Early, 699 F.2d at 558

(“[W]e cannot accept that parties have a right to keep two 

strings to their bow—to seek victory before the tribunal 

and then, having lost, seek to overturn it for bias never 

before claimed.”).

But we need not adopt any approach today. The 

doctrine of appellate waiver is not somehow exempt from 

itself. See, e.g., United States v. Gibbs, 626 F.3d 344, 351 

(6th Cir. 2010). This means that a party can waive a 

waiver argument by not making the argument below or in 

its briefs. A case from the Seventh Circuit is instructive. 

United States v. Leichtnam, 948 F.2d 370 (7th Cir. 1991). 

There, the district court had improperly admitted two

guns into evidence. Id. at 380–81. The defendant did not 

object to the admission of guns at the time, but he later 

objected on appeal. The Seventh Circuit noted that the 

defendant likely waived his objection. Yet the court

concluded that the government waived any waiver 
19

argument by failing to raise the issue “in its brief . . . [or] 

at oral argument.” Id. at 375 (“[T]he government has now 

waived waiver as a defense.”). The court thus considered 

the defendant’s objection. 

That is similar to the situation here. PGW never 

presented its waiver argument to the District Court.9

IV

For 

that reason, the District Court never decided whether 

Freeman had waived his challenge to Lally-Green’s 

impartiality. Nor did the court invite the parties to 

develop the record on the issue. PGW’s silence is

particularly vexing because, as outlined above, whether 

Freeman waived his objection likely depends on whether 

he knew or should have known of the campaign 

contributions during the arbitration. See Bagot, 398 F.3d 

at 256 (explaining that the applicability of waiver 

depends on whether “additional fact-finding is 

necessary”). We are in no position to analyze PGW’s 

fact-dependent waiver argument on appeal.

We now turn to the merits of Freeman’s claims.

Our review of the District Court’s decision not to vacate 

the arbitration “proceed[s] like [our] review of any other 

 9 PGW never mentioned the doctrine of waiver in 

its response to Freeman’s motion to vacate, see App. 81 

to 8r, or in its motion to strike Freeman’s motion to 

vacate, see Supp. App. 91–102.
20

district court decision”—we review its legal conclusions 

de novo and its factual findings for clear error. First 

Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 947–48 

(1995); Century Indem. Co. v. Certain Underwriters at 

Lloyd’s, London, 584 F.3d 513, 521 (3d Cir. 2009).

It is rare for us to disturb an arbitration award. We

will “vacate [an award] only under [the] exceedingly 

narrow circumstances” listed in 9 U.S.C. § 10(a). Dluhos 

v. Strasberg, 321 F.3d 365, 370 (3d Cir. 2003); see also 

Stolt-Nielsen S.A. v. AnimalFeeds Int’l, 130 S. Ct. 1758, 

1768 n.3 (2010) (suggesting that vacatur also is 

appropriate to correct a “manifest disregard” of the law 

either because that standard provides “an independent 

ground for review” or because it is “a judicial gloss on 

the enumerated grounds . . . set forth at 9 U.S.C. § 10”). 

As we have explained, “[w]e do not entertain claims that 

an arbitrator has made factual or legal errors. Rather, 

mindful of the strong federal policy in favor of 

commercial arbitration, we begin with the presumption 

that the award is enforceable.” Sutter v. Oxford Health 

Plans LLC, 675 F.3d 215, 219 (3d Cir. 2012).

V

Freeman claims that Lally-Green was evidently 

partial in violation of 9 U.S.C. § 10(a)(2). This provision 

of the Federal Arbitration Act allows courts to vacate an 

arbitration award “upon the application of any party to 

the arbitration . . . where there was evident partiality or 
21

corruption in the arbitrators, or either of them.”

According to Freeman, Lally-Green violated this 

standard because she failed to disclose two facts: the 

campaign funds from PPG Industries and her teaching 

relationship with Mack. We disagree.

A

The first order of business is to define “evident 

partiality” under the Federal Arbitration Act, 9 U.S.C. 

§ 10(a)(2). Freeman argues that the Act condemns even 

the appearance of bias. This would mean that the 

standard for arbitrators is the same as the disqualification 

standard for federal judges. See 28 U.S.C. § 455(a). 

Under that standard, “what matters is not the reality of 

bias or prejudice but its appearance.” Liteky v. United 

States, 510 U.S. 540, 548 (1994) (interpreting § 455(a)).

In response, PGW contends that the “evident partiality”

standard is less restrictive. 

The confusion over this issue stems from

Commonwealth Coatings Corp. v. Continental Casualty

Co., 393 U.S. 145 (1968). In that alliterative case, Justice 

Hugo Black wrote a plurality opinion stating that “[w]e 

can perceive no way in which the effectiveness of the 

arbitration process will be hampered by the simple 

requirement that arbitrators disclose to the parties any 

dealings that might create an impression of possible 

bias.” Id. at 149 (plurality). He also remarked that “any 

tribunal permitted by law to try cases and controversies 
22

not only must be unbiased but also must avoid even the 

appearance of bias.” Id. (plurality) (emphasis added).

That language is clear, but only three other justices 

joined the opinion. Two justices concurred in an opinion

by Justice Byron White, and three justices dissented.

When interpreting fractured opinions, we look to 

the narrowest grounds for judgment. See Marks v. United 

States, 430 U.S. 188, 193 (1977) (“When a fragmented 

Court decides a case . . . the holding of the Court may be 

viewed as that position taken by those Members who 

concurred in the judgments on the narrowest grounds.”

(citation and quotation marks omitted)). Justice White’s 

concurrence refused to define “evident partiality”

generally. “The Court does not decide today that 

arbitrators are to be held to the standards of judicial 

decorum of Article III judges.” Commonwealth Coatings, 

393 U.S. at 150 (White, J., concurring). He instead 

enunciated a much narrower rule: arbitrators must tell the 

parties about any “substantial interest [they have] in a 

firm” that does business with one of the parties. Id. at 

151–52 (White, J., concurring). Justice White’s 

concurrence is the narrowest grounds for judgment, 

which means that it is the holding of the Court.10

 10 Although Justice White proclaimed to be “glad 

to join [ ] Brother Black’s opinion,” Commonwealth 

Coatings, 393 U.S. at 150 (White, J., concurring), most 

It also 
23

means that the plurality’s discussion of appearances is 

nonbinding.

And that is how other courts have interpreted 

Commonwealth Coatings. Nearly two decades after the 

decision, the Second Circuit interpreted the phrase

“evident partiality” and declared that it was facing “a 

relatively clean slate.” Morelite Constr. v. New York City 

Dist. Council Carpenters Ben. Funds, 748 F.2d 79, 83

(2d Cir. 1984). It rejected the appearance standard and 

held “that ‘evident partiality’ within the meaning of 9 

U.S.C. § 10 will be found where a reasonable person 

would have to conclude that an arbitrator was partial to 

one party to the arbitration.” Id. at 84. 

Other courts soon followed the Second Circuit’s 

 

courts have concluded that Justice White did not in fact 

join the plurality opinion—primarily because his analysis 

is at odds with the plurality’s analysis. See, e.g., Morelite 

Constr. v. New York City Dist. Council Carpenters Ben. 

Funds, 748 F.2d 79, 82–83 (2d Cir. 1984). The Fifth 

Circuit discussed this issue at length in an en banc 

opinion and reached the same conclusion. Positive 

Software Solutions v. New Century Mortg. Corp., 476 

F.3d 278, 280–85 (5th Cir. 2007) (en banc). We 

implicitly agreed with these courts when we adopted the 

Morelite standard in Kaplan v. First Options of Chicago, 

Inc., 19 F.3d 1503, 1523 n.30 (3d Cir. 1994).
24

lead. See, e.g., Apperson, 879 F.2d at 1358 (“We agree 

with the Morelite court’s analysis.”); JCI Comm’ns, Inc., 

324 F.3d at 51; ANR Coal Co. v. Cogentrix of N.C., 173 

F.3d 493, 500-01 (4th Cir. 1999); see also Positive 

Software Solutions v. New Century Mortg. Corp., 476 

F.3d 278, 283 (5th Cir. 2007) (en banc) (interpreting 

“evident partiality” “practically rather than with utmost 

rigor”). Under this standard, “[t]he alleged partiality must 

be direct, definite, and capable of demonstration.”

Andersons, Inc. v. Horton Farms, Inc., 166 F.3d 308, 329 

(6th Cir. 1998). The party asserting bias “must establish 

specific facts that indicate improper motives on the part 

of an arbitrator.” Peoples Sec. Life Ins. v. Monumental 

Life Ins., 991 F.2d 141, 146 (4th Cir. 1993).

We embraced this standard in a footnote. See

Kaplan v. First Options of Chi., Inc., 19 F.3d 1503, 1523 

n.30 (3d Cir. 1994). “[T]o show evident partiality,” we 

explained, “the challenging party must show a reasonable 

person would have to conclude that the arbitrator was 

partial to the other party to the arbitration.” Id. (quoting 

Apperson, 879 F.2d at 1358) (quotation marks omitted)).

Although our discussion was abbreviated, we noted that 

“[e]vident partiality is strong language and requires proof 

of circumstances powerfully suggestive of bias.” Id.

(quotation marks and citations omitted). We have yet to 

revisit this standard in a precedential opinion, nor have 

we explained whether it applies in all cases under the 
25

Federal Arbitration Act.

In response to the parties’ confusion, we take this 

opportunity to reaffirm what we said in Kaplan. An 

arbitrator is evidently partial only if a reasonable person 

would have to conclude that she was partial to one side. 

Id. The conclusion of bias must be ineluctable, the 

favorable treatment unilateral. See Andersons, 166 F.3d 

at 329 (“The alleged partiality must be direct, definite, 

and capable of demonstration.”). 

This standard requires a stronger showing—

namely, partiality that is evident—than does the 

appearance standard, and for good reason. Most 

importantly, the relevant statutory language indicates that 

the two standards should be different. See Zimmerman v. 

Norfolk S. Corp., — F.3d — , 2013 WL 238789, *4 (3d 

Cir. 2013) (“Statutory interpretation requires that we 

begin with a careful reading of the text.”). The Federal 

Arbitration Act requires a party to show “evident 

partiality.” 9 U.S.C. § 10(a)(2). The word “evident”

suggests that the statute requires more than a vague 

appearance of bias. Rather, the arbitrator’s bias must be

sufficiently obvious that a reasonable person would 

easily recognize it. By contrast, the judicial standard

requires recusal if a judge’s “impartiality might 

reasonably be questioned.” 28 U.S.C. § 455(a). This

language suggests that the judicial inquiry focuses on 

appearances—“not on whether the judge actually 
26

harbored subjective bias.” In re Antar, 71 F.3d 97, 101 

(3d Cir. 1995).

In addition, parties often select arbitrators 

precisely because they are industry insiders. Parties want 

someone who understands their business—even if that 

person already has some familiarity with the parties and

issues. See Commonwealth Coatings, 393 U.S. at 150 

(White, J., concurring) (“It is often because they are 

[people] of affairs, not apart from but of the marketplace, 

that they are effective in their adjudicatory function.”); 

see also Lisa Bernstein, Private Commercial Law in the 

Cotton Industry: Creating Cooperation Through Rules, 

Norms, and Institutions, 99 Mich. L. Rev. 1724, 1728 

(2001) (“Arbitrators are selected for their experience in 

their respective industry and their reputation for integrity 

and fairness.” (quotation marks and citation omitted)). 

An overly strict appearance standard would exclude some 

of the most qualified arbitrators.

And unlike litigants in court, parties in arbitration 

are generally free to choose their own adjudicator. This 

choice occurs either when the parties initially enter a 

contract or when a dispute later arises. If the parties are 

willing to proceed in the face of apparent bias, they 

should be free to do so. See Commonwealth Coatings, 

393 U.S. at 151 (White, J., concurring) (noting that 

“parties [ ] are the architects of their own arbitration 

process”). To be sure, the Federal Arbitration Act does 
27

not allow parties to proceed in the face of actual bias. 

The assumption is that anyone who selected a partial 

arbitrator likely held the mistaken belief that the 

arbitrator was in fact impartial. Cf. Restatement (Second) 

of Contracts § 153 (1981) (stating that parties may void 

contracts in certain instances of unilateral mistake).

Finally, the standard for judges is meant “to 

protect the public’s confidence in the judiciary.” Antar, 

71 F.3d at 101. Although the public’s confidence in 

private arbitration is worth protecting, it is comparatively 

less important than confidence in the judiciary. See 

Morelite, 748 F.2d at 83–84 (noting that while the 

judiciary’s appearance standard is too restrictive in 

arbitration cases, “we must not abjure our responsibility 

to maintain the integrity of the federal courts’ role in 

affirming or vacating awards”). All of this counsels in 

favor of the relaxed standard that we announced in 

Kaplan. 

Freeman nevertheless argues that Kaplan applies 

only to so-called actual-bias cases (where the relevant 

facts were known and objected to beforehand), not to 

nondisclosure cases (where the relevant facts were not 

disclosed). We see no reason to adopt a different standard

for each type of case. The Federal Arbitration Act does

not distinguish between actual-bias and nondisclosure 

cases—instead, it condemns “evident partiality” in all

cases. 9 U.S.C. § 10(a)(2). And Kaplan is sufficiently 
28

flexible to accommodate the vagaries of each case. 

Accordingly, we join the Sixth Circuit in applying this

standard in nondisclosure cases. See Nationwide Mut. 

Ins. v. Home Ins., 429 F.3d 640, 644–45 (6th Cir. 2005).

In a last-ditch effort to avoid our standard, 

Freeman invokes the rules of the American Arbitration 

Association. Specifically, he cites Employment 

Arbitration Rule 12b(ii), which states that “[n]eutral 

arbitrators serving under these rules . . . shall have no 

relation . . . to the parties or their counsel that may create 

an appearance of bias” (emphasis added). That rule, 

however, does not govern our review. We are not at 

liberty to jettison the words of Congress in favor of a 

third-party standard. See Merit Ins. v. Leatherby Ins., 714 

F.2d 673, 680 (7th Cir. 1983) (“Although we have great 

respect for the Commercial Arbitration Rules and the 

Code of Ethics for Arbitrators, they are not the proper 

starting point for an inquiry into an award’s validity . . . . 

The arbitration rules and code do not have the force of 

law.”). We therefore reject the appearance standard.

B

The previous section defined the relevant standard:

an arbitrator is evidently partial only if a reasonable 

person would necessarily conclude that the arbitrator was 

partial to one side. See Kaplan, 19 F.3d at 1523 n.30. 

Now we must apply that standard to the case before us. 

Freeman’s claim ultimately fails because no reasonable 
29

person would conclude that Lally-Green was partial to 

PGW.

Freeman cites two supposed nondisclosures as 

evidence of Lally-Green’s partiality. First, she received 

$4,500 in campaign funds from PPG Industries—the 

minority owner of PGW—and its top-level employees. 

Second, she taught a seminar on labor law with Mack, 

PPG Industries’ senior employment attorney. The parties 

disagree whether she mentioned her relationship with 

Mack. In any event, they agree that she said nothing 

about the campaign contributions beyond her 

acknowledgment that she “knew some people at PPG 

[Industries].” App. 5f. 

We know of no other federal court that has 

considered whether undisclosed election funds are proof 

of “evident partiality.” For that matter, no federal court 

has considered whether they create an appearance of bias 

under the heightened judicial standard—perhaps because

federal judges do not run for office. Cf. Caperton v. A.T. 

Massey Coal Co., 556 U.S. 868, 884 (2009) (noting that 

under the Due Process Clause, “[n]ot every campaign 

contribution by a litigant or attorney creates a probability 

of bias that requires a judge’s recusal”). Even so, a 

variety of state courts have addressed these issues. With

few exceptions, they have concluded that undisclosed 

election support does not establish “evident partiality,”

see DeBaker v. Shah, 533 N.W.2d 464, 468–70 (Wis. 
30

1995), nor does it create an appearance of bias, see, e.g.,

Adair v. State, Dep’t. of Educ., 709 N.W.2d 567, 579 

(Mich. 2006).

We reach the same conclusion. The contributions 

from PPG Industries do not establish “evident partiality,”

and the reasons are many. First of all, Lally-Green’s

campaign funds are a matter of public record. In fact, 

PGW was able to view all contributions to her campaign

after a five-minute internet search. We are unable to fault 

Lally-Green for not disclosing information that was 

readily available to the public. She may have assumed 

that the parties already knew about the funds. See 

DeBaker, 533 N.W.2d at 469 (“Because the information 

is public, there can be no allegation that [the arbitrator]

intended to somehow hide the fact that he had received 

contributions from attorneys associated with the [party’s]

law firm.”). 

Moreover, the contributions from PPG Industries 

are relatively small—far less than 1 percent of the $1.7 

million that she raised during her campaign. Compare id.

(concluding that the arbitrator was not evidently partial 

when the contributions he received from the party’s 

attorney “were relatively small”), with Caperton, 556 

U.S. at 884–85 (concluding that the Due Process Clause 

required a judge’s recusal when the defendant’s chairman 

had provided the judge with more than half of his 

campaign funds at a time when the defendant’s case was 
31

imminent). And under Pennsylvania law, Lally-Green

could not directly solicit funds during her bid. Instead, 

she had to “establish [a] committee[] of responsible 

persons to secure . . . funds for [her] campaign.” Pa. 

Code of Jud. Conduct, Canon 7(B)(2). As a result, the 

money does not at all suggest that Lally-Green had a 

close relationship with PPG Industries. Add to that PPG 

Industries’ status as a minority owner of PGW, and we 

fail to see any hint of bias that is “direct, definite, and 

capable of demonstration.” Andersons, 166 F.3d at 329.

It also bears repeating that Lally-Green received a 

fivefold contribution from the law firm representing 

Freeman. This undercuts Freeman’s “evident partiality”

claim because our standard requires evidence that LallyGreen was partial to PGW in particular. See Kaplan, 19

F.3d at 1523 n.30 (“[T]he challenging party must show a 

reasonable person would have to conclude that the 

arbitrator was partial to the other party.” (emphasis 

added) (citation and quotation marks omitted)). A 

reasonable person would not know which side LallyGreen might be likely to favor. Freeman tries to 

downplay his firm’s contribution by drawing a distinction

between parties and attorneys. We find the distinction 

unconvincing. Whether an arbitrator favors a party or its 

attorneys, the harm to the other party is no less real.

Finally, we note that campaign contributions are a 

way of life in many state judicial systems. Putting aside 
32

the wisdom of popular elections for judicial office, “to 

conclude that an arbitrator demonstrates evident partiality 

simply based on non-disclosure of [ ] publicly recorded 

and relatively small political campaign contributions 

would impose too great a burden on the system.”

DeBaker, 533 N.W.2d at 469; see also Adair, 709 

N.W.2d at 579 (“[T]here is no justice in Michigan in 

modern times who has not received campaign 

contributions from such persons.”); Dean v. Bondurant, 

193 S.W.3d 744, 747 (Ky. 2006) (Roach, J., sitting 

alone) (“[U]nder Kentucky’s campaign election finance 

system, it is obvious, even expected, that lawyers will 

make most of the contributions to judicial candidates.”).

As for Lally-Green’s teaching relationship, we 

conclude that it too fails to show “evident partiality”—

even if we accept Freeman’s claim that she did not 

disclose the relationship beforehand. By itself, a

professional relationship with a party’s minority owner is 

not “powerfully suggestive of bias.” Kaplan, 19 F.3d at 

1523 n.30 (citation and quotation marks omitted). Nor is 

it a specific fact “that indicate[s] improper motives on the 

part of an arbitrator.” Peoples Sec., 991 F.2d at 146; see 

also Uhl v. Komatsu Forklift Co., 466 F. Supp. 2d 899, 

907–08 (E.D. Mich. 2006). The Federal Arbitration Act 

requires more than suppositions based on mutual 

familiarity. In fact, Justice White’s concurrence in 

Commonwealth Coatings “fully envisions upholding 
33

awards when arbitrators fail to disclose insubstantial 

relationships.” Positive Software, 476 F.3d at 281–82 

(citing Commonwealth Coatings, 393 U.S. at 152 (White, 

J., concurring)); Montez v. Prudential Sec., 260 F.3d 980, 

984 (8th Cir. 2001); cf. Clemens v. U.S. Dist. Court for 

Cent. Dist. of Cal., 428 F.3d 1175, 1180 (9th Cir. 2005) 

(“[M]andatory disqualification of a single judge [under 

§ 455(a)] is not warranted simply because of a 

professional relationship with a victim.”). 

We see no reason to vacate the arbitration. In 

hindsight, it might have been preferable for Lally-Green

to disclose more about her relationship with PPG 

Industries. See Commonwealth Coatings, 393 U.S. at 151 

(White, J., concurring) (“[I]t is far better that the 

relationship be disclosed at the outset, when the parties 

are free to reject the arbitrator . . . than to have the 

relationship come to light after the arbitration, when a 

suspicious or disgruntled party can seize on it as a pretext 

for invalidating the award.”). Even so, Lally-Green’s 

failure to say more does not establish “evident partiality”

under 9 U.S.C. § 10(a)(2).

VI

Freeman also claims that Lally-Green fraudulently 

induced the arbitration agreement. Lally-Green told the 

parties that she “knew some people at PPG [Industries].”

App. 5f. According to Freeman, this partial disclosure

concealed the true nature of her relationship with PPG 
34

Industries. He thus asserts that the arbitration agreement 

is voidable and that the arbitration is invalid. This claim 

is more than a stretch.

In general, an innocent party can void a contract

induced by fraud. See In Re Allegheny Int’l, 954 F.2d 

167, 178 (3d Cir. 1992). This doctrine applies with equal 

force to arbitration agreements—the defrauded party can 

void the agreement and pursue its claims in court. See

Rent-A-Center v. Jackson, 130 S. Ct. 2772, 2776, 2778

(2010) (“Like other contracts, [arbitration agreements] 

may be invalidated by generally applicable contract 

defenses, such as fraud, duress, or unconscionability.”

(citation and question marks omitted)).

Freeman’s claim differs from the run-of-the-mill 

fraudulent-inducement claim. In most cases, a party to 

the agreement alleges that the other party fraudulently 

induced the agreement. See, e.g., Wash. Mut. Fin. Group, 

LLC v. Bailey, 364 F.3d 260, 265 (5th Cir. 2004). In this 

case, however, Freeman alleges that the arbitrator

induced her selection through deceit. The Federal 

Arbitration Act certainly allows courts to vacate an 

arbitration if “the award was procured by corruption, 

fraud, or undue means.” 9 U.S.C. § 10(a)(1). And it 

allows courts to do the same if “there was . . . corruption 

in the arbitrators.” Id. § 10(a)(2). So Freeman is correct 

that we can vacate an arbitration if the arbitrator’s fraud 

led to her selection.
35

Freeman’s problem is that he must prove fraud in 

the inducement. Under Pennsylvania law, such claims 

have six elements:

(1) a representation; (2) which is material to 

the transaction at hand; (3) made falsely, 

with knowledge of its falsity or recklessness 

as to whether it is true or false; (4) with the 

intent of misleading another into relying on 

it; (5) justifiable reliance on the 

misrepresentation; and (6) the resulting 

injury was proximately caused by the 

reliance.

EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253, 275 (3d Cir. 

2010) (quoting Skurnowicz v. Lucci, 798 A.2d 788, 793 

(Pa. Super. Ct. 2002)). Pennsylvania law also requires 

proof of each element by “clear and convincing 

evidence.” Id.

Freeman fails miserably in his effort to satisfy 

these elements. We begin with the fourth: “intent [to]

mislead[] another.” Id. As noted above, Lally-Green was 

unable to solicit funds directly. See Pa. Code of Jud. 

Conduct, Canon 7(B)(2). She might have been unaware 

that PPG Industries contributed to her campaign. And 

even if she knew of the contributions, she might have 

assumed that the parties were similarly aware. That is 

enough to defeat the element of intent.
36

Most grievously, Freeman does not even try to 

show that his “injury was proximately caused by [his]

reliance.” EBC, 618 F.3d at 275. The only injury that 

Freeman alleges is that he lost at arbitration. This makes 

causation difficult to prove. Freeman must show that his 

discrimination claim would have succeeded in front of a 

different arbitrator. In effect, he has the “turducken task”

of proving his discrimination claim within his fraud 

claim, F.T.C. v. Watson Pharmaceuticals, 677 F.3d 1298, 

1315 (11th Cir. 2012), much like plaintiffs must do in 

legal malpractice suits, Dixon Ticonderoga Co. v. Estate 

of O’Connor, 248 F.3d 151, 175 (3d Cir. 2001) (noting 

“the case-within-a-case phenomenon that often arises in 

professional malpractice litigation”). Because Freeman 

makes no attempt to establish the elements of his 

discrimination claim, his fraud claim must fail.

* * *

For these reasons we will affirm the District 

Court’s order denying Freeman’s motion to vacate.