UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

THIAN LOK TIO et al., : 

 : 

 Petitioners, : Civil Action No.: 08-0626 (RMU)

 : 

 v. : Re Document No.: 1 

 : 

WASHINGTON HOSPITAL CENTER et al., : 

 : 

 Respondents. :

MEMORANDUM OPINION

DENYING THE PETITION TO VACATE ARBITRATION AWARD

I. INTRODUCTION

This matter arises from an employment dispute between the petitioners, a physician and 

his spouse, and the physician’s former employer, respondent Washington Hospital Center (“the 

Hospital”). On November 5, 2004, in a prior action before this court, the court dismissed the 

petitioners’ claims against the Hospital and its fellow respondents on the grounds that those 

claims were subject to a mandatory arbitration provision in the subject employment contract. 

The petitioners subsequently submitted their claims to arbitration and a final arbitration award 

was entered in favor of the respondents. Dissatisfied with the result of the arbitration 

proceedings, the petitioners initiated this action seeking vacatur of the arbitration award. 

Because the petitioners have not demonstrated that vacatur is appropriate, the court denies their 

petition to vacate the arbitration award. 
2

II. FACTUAL & PROCEDURAL BACKGROUND

 Petitioner Thian Lok Tio, M.D. (“Dr. Tio”) is a former employee of the Hospital,1

 where 

he held the position of Director of Endoscopy in the Section of Gastroenterology. Tio v. Wash. 

Hosp. Ctr., 2004 WL 2663149, at *1 (D.D.C. Nov. 5, 2004).2 Prior to commencing his 

employment at the Hospital, Dr. Tio and the Hospital entered into a written employment 

agreement (the “Agreement”). See id.; Respts’ Opp’n to Petrs’ Mot. to Vacate (“Respts’ 

Opp’n”) at 2. The Agreement contained an arbitration clause, which provided, in relevant part, 

that “any controversy, dispute or disagreement arising out of or relating to this Agreement, or the 

breach thereof, shall be settled by binding arbitration.” Compl., Ex. 1 ¶ 12, Tio v. Wash. Hosp. 

Ctr., No. 04-701 (D.D.C. Apr. 28, 2004). The Agreement provided for the costs of arbitration to 

be divided equally between the parties. See id.

On April 18, 2003, the Hospital terminated Dr. Tio’s employment. Tio, 2004 WL 

2663149, at *1. Dr. Tio and his wife, petitioner Ting Song S. Tio (“Mrs. Tio”), subsequently 

filed suit against the respondents in the D.C. Superior Court, alleging: (1) tortious breach of 

contract; (2) tortious interference with an employment contract; (3) denial of common-law good 

faith and fair dealing; (4) tortious interference with third-party physician-patient contracts; (5) 

defamation/slander; (6) intentional infliction of emotional distress (“IIED”); (7) 

fraud/misrepresentation; (8) antitrust violations; (9) wrongful termination; and (10) loss of 

 

1

 Respondent Medstar Health, Inc. is the corporate parent of respondent Washington Hospital 

Center Corporation. Pet. ¶ 2. 

2

 The parties in this action were previously before this court in a separate action involving the same 

underlying claims. See generally Compl., Tio v. Wash. Hosp. Ctr., No. 04-701 (D.D.C. Apr. 28, 

2004). The court draws the background facts of this case, in part, from the description of relevant 

facts set forth in its November 5, 2004 memorandum opinion in the prior case. 
3

consortium.3

 Id. After removing the action to this court, the defendants moved to dismiss the 

complaint and compel submission of the claims to arbitration. Id. 

On November 5, 2004, the court granted the defendants’ motion. Id. at *7. In reaching 

its decision, the court held that the Agreement, including the arbitration provision, was valid and 

enforceable. Id. at *6. The court also concluded that the arbitration provision encompassed all 

of the claims asserted by Dr. Tio and that Mrs. Tio’s claims were entirely derivative of and 

dependent on Dr. Tio’s claims and therefore subject to mandatory arbitration as well. Id. at *7. 

The petitioners subsequently initiated an arbitration proceeding before Judicial 

Arbitration & Mediation Services, Inc. (“JAMS”), asserting all of the claims raised in their 

complaint. Pet. ¶ 13; Respts’ Opp’n at 3. During a preliminary hearing, and without objection, 

the arbitrator narrowed the parties to those within the scope of the Agreement between Dr. Tio 

and the Hospital. Respts’ Opp’n, Ex. E (“Final Award”) at 2. On January 25, 2007, after 

briefing and oral argument, the arbitrator granted in part the Hospital’s motion for summary 

judgment and dismissed all of the claims except Dr. Tio’s claims for breach of contract and 

wrongful termination on the basis of discrimination. Id. 

Beginning in late August 2007, the arbitrator conducted a hearing that spanned eight 

days. Id. at 3. At the hearing, the parties presented “diametrically opposed” versions of the 

events at issue. Id. at 3 n.1. After considering the cumulative weight of all admissible evidence, 

including testimony adduced during the hearings, id., the arbitrator summarized his factual 

 

3

 In the petitioners’ initial action, Dr. Tio’s wife was identified as Ting Soan S. Tio. Compl. at 1, 

Tio, 2004 WL 2663149. The defendants in that action were the Hospital, Medstar Health, Inc., 

and nine employees and officers of the Hospital (hereinafter referred to collectively as “the 

defendants”). See generally id. 
4

findings, in relevant part, as follows: 

At some time in 2001, [Dr. Tio] initiated an employment application process at 

the Cedars-Sinai Hospital in California . . . [and continued] to pursue outside 

employment opportunities throughout 2002. In addition to seeking alternative 

employment, [Dr. Tio] curtailed his work at [the Hospital]. He began to travel 

extensively, attending conferences, speaking at engagements, and taking 

international trips and vacations. [Dr. Tio’s] productivity, measured in terms of 

patient revenues and responsiveness to operational needs, plummeted. On or 

about April 23, 2003, [the Hospital] . . . terminated [Dr. Tio’s] employment for 

cause, citing primarily [Dr. Tio’s] lack of leadership, decreased attention to his 

duties, and decline in productivity. 

Id. at 4. 

According to the arbitrator, Dr. Tio established at the hearing that he is a member of a 

protected class and that he suffered an adverse employment action when he was terminated from 

the hospital. Id. Nonetheless, the arbitrator held that to prevail on his claim of discrimination, 

which formed the basis of Dr. Tio’s breach of contract and wrongful termination claims,4

 Dr. Tio 

also needed to establish that he was treated disparately from other employees on the basis of his 

race and national origin. Id. at 5. Although Dr. Tio identified various instances in which he 

believed he had been treated disparately from other physicians at the Hospital, the arbitrator 

ultimately concluded that there was insufficient evidence to establish disparate treatment. See id. 

at 5-6. Because the Hospital proffered evidence that Dr. Tio’s employment had been terminated 

for cause and because Dr. Tio failed to establish that he suffered discrimination in the course of 

his employment with and termination from the Hospital, the arbitrator entered a final arbitration 

award in favor of the Hospital with respect to all claims and allegations. Id. at 5-7. 

Following the arbitrator’s ruling, the petitioners filed this petition to vacate the arbitration 

 

4

 The crux of Dr. Tio’s breach of contract claim appears to have been that his termination was 

without cause and motivated by discriminatory animus. See generally Compl., Tio, No. 04-701. 
5

award. See generally Pet. The petitioners contend that the arbitration award should be vacated 

because their claims were not subject to the Agreement’s mandatory arbitration clause, the 

arbitrator displayed bias and acted in manifest disregard of the law and the fee-splitting provision 

of the Agreement’s arbitration clause violates public policy. See generally id.; Petrs’ Mem. in 

Support of Pet. (“Petrs’ Mem.”). The respondents maintain that the petitioners have presented 

no valid justification for vacating the final arbitration award. See generally Respts’ Opp’n. With 

this matter ripe for disposition, the court turns to the applicable legal standards and the parties’ 

arguments. 

III. ANALYSIS

A. The Petitioners’ Claims Fell Within the Scope of the Arbitration Agreement

Despite this court’s November 5, 2004 ruling, the petitioners contend that their claims 

should not have been submitted to arbitration because (1) the Agreement involves foreign or 

interstate commerce and is therefore exempt from the provisions of the Federal Arbitration Act 

(“FAA”) under 9 U.S.C. § 1, (2) Dr. Tio’s claim of tortious interference with third-party 

physician-patient contracts falls outside the scope of the Agreement as the claim arose after the 

termination of his employment with the Hospital and (3) the Hospital waived its right to invoke 

the arbitration clause of the Agreement as it did not seek to arbitrate this dispute prior to 

terminating Dr. Tio’s employment. Pet. ¶¶ 5, 9-10. The petitioners raised each of these 

arguments in the prior proceedings before this court in response to the respondents’ motion to 
6

dismiss and compel arbitration.5

 See Pls.’ Opp’n to Defs.’ Mot. Dismiss & Compel Arbitration,

Tio, 2004 WL 2663149. In ruling on the respondents’ motion to dismiss, the court considered 

and rejected each of these arguments. See Tio, 2004 WL 2663149, at *6-7. Accordingly, for the 

reasons set forth in this court’s Memorandum Opinion dated November 5, 2004, the court holds 

that the claims at issue in the arbitration proceedings were within the scope of the arbitration 

provision of the Agreement and properly submitted to the arbitrator for determination. 

 The court notes that the petitioners did not challenge the November 5, 2004 order 

dismissing their claims or the court’s ruling concerning the scope of the arbitration provision. 

Under the FAA, “[a]n appeal may be taken from a final decision with respect to an arbitration 

that is subject to this title.” 9 U.S.C.S. § 16(a)(3). A “final decision” is a decision “that ends the 

litigation on the merits and leaves nothing more for the court to do but execute the judgment.” 

Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86 (2000) (internal quotations 

omitted). The court’s November 5, 2004 order granting the Hospital’s motion to dismiss and 

referring the petitioner’s claims to arbitration under the arbitration clause of the Agreement 

constituted a final appealable decision. Id. at 89 (holding that district court order dismissing 

claims and directing arbitration is final within the meaning of 9 U.S.C. § 16(a)(3), and therefore 

 

5

 Although the petitioners did not specifically argue that the tortious interference claim was outside 

the scope of the arbitration agreement, they did contest the scope of the agreement generally and 

the court concluded that each claim, including Dr. Tio’s tortious interference claim, was within 

the scope of the Agreement. See Tio, 2004 WL 2663149, at *6. Nonetheless, Dr. Tio’s tortious 

interference claim seems to hinge entirely on whether the respondents interfered with his ability 

to take his “book of business” with him after the termination of his employment at the Hospital, 

see Pet. ¶ 10, and it therefore is within the scope of the arbitration provision because it relates to 

the Agreement and arose in connection with the termination of the agreement, see P&P Indus., 

Inc. v. Sutter Corp., 179 F.3d 861, 871 (10th Cir. 1999) (concluding that a claim for tortious 

interference with third-party contracts fell within the scope of an “arising out of or relating to” 

arbitration clause when the claim arose in connection with the termination of the parties’ 

contract). 
7

appealable). Therefore, to the extent the petitioners disagree with the court’s prior ruling, they 

failed to timely raise their objections on appeal.6

 See FED. R. APP. P. 4(a)(1)(A) (stating that a 

notice of appeal of a final order must be filed within thirty days after the judgment or order 

appealed from is entered). 

B. Vacatur of the Arbitration Award Is Not Warranted 

1. Legal Standard for Vacatur of an Arbitration Award

 Judicial review of arbitration awards is extremely limited. Kurke v. Oscar Gruss & Son, 

Inc., 454 F.3d 350, 354 (D.C. Cir. 2006). The court “do[es] not sit to hear claims of factual or 

legal error by an arbitrator” in the manner that an appeals court would review a decision of a 

lower court. Teamsters Local Union No. 61 v. United Parcel Serv., Inc., 272 F.3d 600, 604 

(D.C. Cir. 2001) (quoting Kanuth v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178 (D.C. 

Cir. 1991)). Rather, under the FAA, a court may only vacate an arbitration award 

(1) where the award was procured by corruption, fraud, or undue means; 

(2) where there was evident partiality or corruption in the arbitrators, or either of 

them; 

 

6

 A party may also seek relief from a final judgment under Federal Rule of Civil Procedure 60(b). 

Rule 60(b)(6) provides that a court may grant relief from a final judgment for any reason that 

justifies relief if such relief is requested within a reasonable time. See FED. R. CIV. P. 60(b)-(c). 

Such relief is justified only in exceptional or extraordinary circumstances. Ackermann v. United 

States, 340 U.S. 193, 199-202 (1950). “What constitutes a ‘reasonable time’ depends upon the 

facts of each case, taking into consideration the interests of finality, the reasons for the delay, the 

practicability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other 

parties.” Bowie v. Maddox, 677 F. Supp. 2d 276, 278 (D.D.C. 2010) (quoting Osborne v. 

Homeside Lending, Inc., 379 F.3d 277, 283 (5th Cir. 2004)). Although the petitioners did not 

expressly request relief from the final judgment that was entered on November 5, 2004, the court 

notes the circumstances of this case are neither exceptional nor extraordinary and thus would not 

justify relief from the final judgment. Moreover, the petitioners’ are attempting to relitigate 

issues that were previously resolved by the court forty-one months after entry of a final judgment 

disposing of their claims. It is apparent that the petitioners have only raised these issues again 

because they are dissatisfied with the result of the arbitration. The court therefore concludes that 

the petitioners’ delay was not reasonable. 
8

(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). The party challenging an arbitration award bears the burden of demonstrating 

that one of the statutory grounds set forth in the FAA exists. See Al-Haribi v. Citibank, N.A., 85 

F.3d 680, 682 (D.C. Cir. 1996). 

In addition to the statutory grounds for vacatur, this Circuit has also stated that vacatur of 

an arbitration award is permitted if the arbitrator acted in “manifest disregard of the law,”7 Al 

Haribi v. Citibank, N.A., 85 F.3d 680, 682 (D.C. Cir. 1996) (quoting Kanuth, 949 F.2d at 1178), 

or if the award is “contrary to ‘some explicit public policy’ that is ‘well defined and dominant’ 

and ascertained ‘by reference to the laws or legal precedents,’” LaPrade v. Kidder, Peabody & 

Co., 246 F.3d 702, 706 (D.C. Cir. 2001) (quoting Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 

1486 (D.C. Cir. 1997)). To vacate an arbitration award on the basis of an arbitrator’s manifest 

 

7

 The Supreme Court recently held that the provisions set forth in 9 U.S.C. § 10 “provide the 

FAA’s exclusive grounds for expedited vacatur.” Hall Street Assocs. v. Mattel, Inc., 552 U.S. 

576, 582 (2008). In light of this ruling, it is unclear whether the “manifest disregard” standard 

remains a viable basis for relief. Compare, e.g., Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 

349, 358 (5th Cir. 2009) (recognizing that manifest disregard of the law is no longer an 

“independent, nonstatutory ground” for setting aside an arbitration award) with Comedy Club, 

Inc. v. Improv West Assocs., 553 F.3d 1277, 1281 (9th Cir. 2009) (concluding that manifest 

disregard of the law “remains a valid ground for vacatur of an arbitration award under § 10(a)(4) 

of the Federal Arbitration Act”). Neither the Supreme Court nor this Circuit has resolved this 

issue. See Stolt-Nielson S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1768 n.3 (2010) 

(declining to decide whether the “manifest disregard” doctrine continues to survive as an 

independent ground for judicial review of an arbitration award); Regnery Publ’g Inc. v. Miniter, 

368 F. App’x 148 (D.C. Cir. 2010) (assuming without deciding that the “manifest disregard” 

doctrine survives Hall Street). Because the petitioners in this case have not established the 

arbitrator’s “manifest disregard,” see infra Part III.B.3, the court need not decide the viability of 

the “manifest disregard” standard to resolve this case. 
9

disregard of the law, the court “must find that (1) the arbitrator[] knew of a governing legal 

principle yet refused to apply it or ignored it altogether and (2) the law ignored by the arbitrator[] 

was well defined, explicit, and clearly applicable to the case.” Id. (quoting DiRussa v. Dean 

Witter Reynolds, Inc., 121 F.3d 818, 821 (2d Cir. 1997)). 

 2. The Petitioners Have Not Established a Statutory Basis 

for Vacating the Arbitration Award

 The petitioners argue that vacatur is appropriate under the FAA on two grounds: evident 

partiality and misconduct.8

 Specifically, the petitioners contend that the arbitrator demonstrated 

partiality by making various rulings that were adverse to their claims and that the arbitrator 

committed misconduct by excluding certain testimony during the arbitration hearing. See 

generally Pet.; Petrs’ Mem. at 25-26. The respondents contend that the court should reject the 

petitioners’ assertion of evident partiality because they have not produced any evidence to 

support their contentions, the purported instances of partiality are belied by the record and the 

conduct complained of, even if true, does not rise to the level of evident partiality. See Respts’ 

Opp’n at 12-15. The respondents further contend that the petitioners have failed to demonstrate 

misconduct, as they have not shown that the excluded testimony was material and pertinent or 

that they were denied a fair and full hearing as a result of the arbitrator’s conduct. See id. at 15-

17. 

The court turns first to the petitioners’ claim of evident partiality. A party challenging an 

 

8

 The petitioners also seem to argue that vacatur is appropriate under 9 U.S.C. § 10(a)(4) on the 

ground that the arbitrator exceeded his authority, but this argument appears to be grounded in the 

petitioners’ contention that some of their claims were outside the scope of the arbitration 

provision of the Agreement. Pet. ¶¶ 9-10; Petrs’ Mem. at 22-23. As previously discussed, 

however, the court already concluded in its November 5, 2004 ruling that all of the petitioners’ 

claims were subject to the arbitration provision. See supra Part III.A. Therefore, the arbitrator 

did not exceed his authority by resolving all of the petitioners’ claims. 
10

arbitration award because of evident partiality bears a “heavy” burden to establish “specific facts 

that indicate improper motives on the part of an arbitrator.” Al-Haribi, 85 F.3d at 683 (quoting

Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 991 F.2d 141, 146 (4th Cir. 1993)). “The 

alleged partiality must be direct, definite, and capable of demonstration rather than remote, 

uncertain or speculative.” Id. (quoting Peoples Sec. Life Ins., 991 F.2d at 146). “[A] mere 

appearance of bias is insufficient to demonstrate evident partiality.” Alston v. UBS Fin. Servs., 

Inc., 2006 WL 20516, at *3 (D.D.C. Jan. 2, 2006). 

The petitioners contend that the arbitrator exhibited evident partiality in numerous 

procedural, substantive and evidentiary rulings during the course of the arbitration proceedings. 

See generally Pet. But rather than identifying specific facts that indicate improper motives on 

the part of the arbitrator, the petitioners rely primarily on speculative and conclusory allegations 

to support their claim. The petitioners do not support their assertion of evident partiality with a 

single citation to the record of the arbitration proceedings or any other evidence setting forth the 

specific facts necessary to support their position. See generally Pet.; Petrs’ Mem. Indeed, the 

petitioners’ claim of evident partiality rests almost exclusively on their dissatisfaction with the 

arbitrator’s rulings that “eliminate[d] and restrict[ed] the claims, the parties, the number of 

witness [sic], [and] the timing and order of presentation of Petitioner’s case in chief.” Pet. ¶ 15. 

These rulings, however, do not demonstrate evident partiality.9

 See Alston, 2006 WL 20516, at 

*3-4 (rejecting the petitioners’ contention that unfavorable procedural and evidentiary rulings by 

 

9

 At any rate, on the record before the court, there does not seem to be anything unusual or 

inappropriate about the arbitrator’s rulings on these issues. See Fairchild & Co. v. Richmond, F. 

& P. R. Co., 516 F. Supp. 1305, 1313 (D.D.C. 1981) (recognizing that “since the advantages of 

arbitration are speed and informality, an arbitrator should be expected to act affirmatively to 

simplify and expedite the proceedings before him”). 
11

an arbitrator amounted to evident partiality). Although a series of unfavorable rulings by the 

arbitrator may produce an appearance of bias in the eyes of the unsuccessful party, it does not 

justify vacating the arbitration award. 

The petitioners also contend that the arbitrator’s ultimate conclusion and decision to enter 

the final arbitration award in favor of the respondents demonstrates his evident partiality. See

Pet. ¶ 12; Petrs’ Mem. at 24-25. It would appear that the petitioners base this contention on their 

belief that the arbitrator inappropriately credited the testimony of witnesses offered by the 

respondents, even though “[t]hey were contradicted on cross-examination.” Petrs’ Mem. at 25. 

The petitioners, however, have not identified specific testimony that they believe was unworthy 

of credence and point to no specific facts that indicate improper motives on the part of the 

arbitrator in concluding that the weight of the evidence favored the defendant. See generally 

Pet.; Petrs’ Mem. Indeed, the arbitrator specifically noted in the final arbitration award that the 

parties had offered conflicting versions of the circumstances. Final Award at 3. The arbitrator 

further observed that “[w]hile the credibility of witnesses was taken into account . . . a finding 

that does not comport with a particular party’s testimony should not necessarily be deemed a 

finding that the party lacked credibility. All findings were based upon the cumulative weight of 

all admissible evidence.” Id. At any rate, the court is “not authorized to reconsider the merits of 

an award even though the parties may allege that the award rests on errors of fact.” Teamsters 

Local Union No. 61, 272 F.3d at 604 (quoting United Paperworkers Int’l Union, AFL-CIO v. 

Misco, Inc., 484 U.S. 29, 36 (1987)). The court will not second-guess the arbitrator’s award 

simply because the petitioners disagree with his factual conclusions. 

Equally unavailing is the petitioners’ argument that the arbitration award should be 

vacated because the arbitrator was guilty of misconduct in failing to hear certain evidence. See
12

Pet. ¶ 14; Petrs’ Mem. at 25-26. An arbitrator has the broad discretion to control the evidence in 

an arbitration proceeding, including the authority to refuse to hear evidence that is cumulative or 

of little relevance. Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d 813, 817-18 

(D.C. Cir. 2007); see also Fairchild, 516 F. Supp. at 1314 (noting that “arbitrators are charged 

with the duty of determining what evidence is relevant and what is irrelevant”). To justify 

vacatur on the ground of misconduct, the petitioners must demonstrate that the excluded 

evidence was pertinent and material to the controversy, 9 U.S.C. § 10(a)(3), and that the 

exclusion of the evidence deprived the petitioners of a fundamentally fair hearing, Lessin, 481 

F.3d at 816; see also Fairchild, 516 F. Supp. at 1314 (recognizing that evidentiary mistakes do 

not provide grounds for vacating an arbitration award unless they undermine the fundamental 

fairness of the proceedings). Thus, “every failure to receive relevant evidence does not 

constitute misconduct under the [FAA] so as to require vacation of the award.” Fairchild, 516 F. 

Supp. at 1314 . 

 The “pertinent and material” evidence that the petitioners contend was erroneously 

excluded includes testimony by the wife of a hospitalized patient, testimony of “other patients 

. . . to show total revenue generated due to high income for specialized procedures,” “testimony 

of other physicians and fellows as to Dr. Tio’s leadership in running the unit,” and “rebuttal 

testimony of witness to refute testimony of respondents[’] witnesses.” Pet. ¶ 14. It is not clear 

what value this testimony would have added to the proceeding and the petitioners have not 

attempted to explain how this testimony is pertinent and material to Dr. Tio’s claims of breach of 

contract and discrimination. See generally Pet.; Petrs’ Mem. But assuming arguendo that this 

testimony would have been relevant to the claims at issue in the hearing, the petitioners’ 

argument fails because they have not established that the excluded evidence was critical to their 
13

case or that the exclusion of the testimony deprived them of a fundamentally fair hearing. See 

Howard Univ. v. Metro. Campus Police Officer's Union, 512 F.3d 716 (D.C. Cir. 2008) 

(deferring to the arbitrator’s discretion in making evidentiary rulings and noting that the 

excluded evidence was not critical to the proponent’s case). 

Accordingly, although the petitioners have demonstrated their dissatisfaction with the 

result of the arbitration proceeding, they have not established that vacatur is appropriate under 9 

U.S.C. § 10(a). Because the petitioners failed to meet their burden, the court declines to vacate 

the arbitration award on statutory grounds. 

3. The Petitioners Have Not Shown the Arbitrator’s Manifest Disregard of the Law

As an alternate ground for vacatur, the petitioners contend that the arbitrator acted in 

manifest disregard of the law. Pet. ¶ 14; Petrs’ Mem. at 20-21. Although the petitioners’ 

arguments are not entirely clear, their primary contention appears to be that the arbitrator 

demonstrated manifest disregard of the law by denying the respondents’ motion for summary 

judgment as to the breach of contract claim, but granting the motion as to Dr. Tio’s claims of 

tortious interference, IIED and discrimination.10 Petrs’ Mem. at 21. According to the 

petitioners, these claims are “so inextricably linked” with the breach of contract claim that it was 

error to dismiss them. Id. In addition, the petitioners contend that the arbitrator acted in 

manifest disregard of the law when he granted in part the respondents’ motion for summary 

judgment and dismissed “nearly all [of the] petitioners’ major claims and all key individual 

 

10 As discussed more fully below, contrary to the petitioners’ contention, the arbitrator did not grant 

the respondents’ motion for summary judgment on Dr. Tio’s discrimination claim. See infra Part 

III.B.3. 
14

parties, without oral argument or other hearing,”11 Pet. ¶ 14, and by failing to set forth his ruling 

in a detailed written opinion, id. 

The respondents contend that their motion for summary judgment was “amply supported 

by record evidence demonstrating that [they were] entitled to summary judgment,” Respts’ 

Opp’n at 21, and have identified portions of the record indicating that the arbitrator made a 

reasoned and deliberate ruling on the motion for summary judgment, id. at 21-22; see also PreHearing Order No. 1 (setting forth the arbitrator’s ruling on the Hospital’s motion for summary 

judgment and noting that the ruling was made “[o]n the basis of the written motions and all 

responses filed thereto, as well as oral argument”); H’rg Tr. at 81:2-3 (stating that the basis of his 

ruling on the Hospital’s motion for summary judgment “is in Respondent’ s 43-page brief 

[where] they thoroughly briefed these issues”). 

To demonstrate that the arbitrator acted in manifest disregard of the law, the petitioners 

must show that the arbitrator knew of a governing legal principle, yet refused to apply it in ruling 

on their claims. LaPrade, 246 F.3d at 706. Because the parties briefed and argued the matters at 

issue in the respondents’ motion for summary judgment, the court assumes arguendo that the 

arbitrator knew the legal principles that govern the petitioners’ substantive claims. The 

 

11 To the extent the petitioners take issue with the dismissal of individual parties and the arbitrator’s 

alleged failure to hold a hearing, Pet. ¶ 14, their contentions are refuted by the record. The record 

indicates that “the arbitrator narrowed the parties to those who were within the scope of the 

operable agreement to arbitrate contained in [the Agreement].” Final Award at 2. This ruling 

occurred, without objection by Dr. Tio or the Hospital, during the preliminary hearing. Id. 

Moreover, the arbitrator indicated during the arbitration proceedings that his summary judgment 

order “was made on the basis of written motions, all the responses filed thereto, and oral 

arguments.” Respts’ Opp’n, Ex. K (“Hearing Tr.”) at 29:5-7 (emphasis added); see also Respts’ 

Opp’n, Ex. I (“Pre-Hearing Order No. 1”) (noting that the arbitrator’s ruling concerning the 

motion for summary judgment was made “[o]n the basis of the written motions and all responses 

filed thereto, as well as oral argument made by the parties”). Thus, the record clearly indicates 

that the arbitrator did conduct a hearing. 
15

petitioners, however, still must demonstrate that the arbitrator refused to apply these governing 

legal principles to their claims when he ruled on the respondents’ motion for summary judgment. 

The petitioners suggest that because there was a genuine issue of material fact related to 

their breach of contract claim, there must have also been a genuine issue of material fact related 

to their other claims. Petrs’ Mem. at 21. This argument assumes that the petitioners’ claims are 

comprised of overlapping or identical elements, such that they must all survive summary 

judgment or all be dismissed. Such an assumption is not justified. Indeed, it should be selfevident that the elements of a claim of IIED or tortious interference with a business relationship 

are not the same as the elements of a claim for breach of contract. Compare, e.g., Pitt v. Dist. of 

Columbia, 491 F.3d 494, 505-06 (D.C. Cir. 2007) (setting forth the elements of an IIED claim 

under District of Columbia law) with Sturdza v. United Arab Emirates, 281 F.3d 1287, 1305 

(D.C. Cir. 2002) (setting forth the elements of a tortious interference claim under District of 

Columbia law) and Ihebereme v. Capital One, N.A., 2010 WL 3118815, at *3 (D.D.C. Aug. 9, 

2010) (setting forth the elements of a breach of contract claim). Because the petitioners have 

offered no evidence to demonstrate that the arbitrator refused to apply or ignored the legal 

principles governing claims of tortious interference or IIED or any other claim at issue in the 

proceedings, they have not demonstrated that the arbitrator acted in manifest disregard of the law 

by granting in part and denying in part the respondents’ motion for summary judgment. See 

generally Pet.; Petrs’ Mem. 

The petitioners also contend that the arbitrator acted in manifest disregard of the law by 

granting the respondents’ motion for summary judgment on Dr. Tio’s discrimination claim. See

Pet. ¶ 14 (contending that “this partial finding [on the motion for summary judgment] is wrong 

with regard to claims of discrimination where the breach of contract could be based on such 
16

grounds”); Petrs’ Mem. at 27 (arguing that the “Petitioners’ discrimination claims should not 

have been cut off by way of Summary Judgment granted to the Respondents”). The record 

plainly indicates, however, that the arbitrator denied the respondents’ motion for summary 

judgment on this claim. See Pre-Hearing Order No. 1 (granting summary judgment to the 

Hospital and dismissing all claims except Dr. Tio’s claims of breach of contract and wrongful 

termination of employment on the basis of discrimination) (emphasis added); Final Award at 2 

(stating that “the claims remaining to be heard were Claimant’s allegations that Respondent . . . 

illegally terminated his employment on the basis of discrimination”) (emphasis added); id. at 4-6 

(analyzing the merits of Dr. Tio’s discrimination claim). Instead, the arbitrator conducted an 

evidentiary hearing spanning eight days and concluded, based on the evidence presented during 

the hearing, that the petitioner had not proven his claim of discrimination. Final Award at 6 

(stating that the “matter was noteworthy for the complete absence of any evidence of racial bias 

or other impermissible intent to discriminate against [Dr. Tio]”). 

The petitioners also suggest that the arbitrator acted in manifest disregard of the law by 

ruling on the respondents’ motion for summary judgment “with a single sentence.” Pet. ¶ 14. 

Although the arbitrator did not render a detailed opinion as to the basis of his rulings on the 

motion for summary judgment, he was under no obligation to do so. See Sargent v. Paine 

Webber Jackson & Curtis, Inc., 882 F.2d 529, 532 (D.C. Cir. 1989) (holding that arbitrators are 

not required to explain the basis for their awards); cf. Kurke, 454 F.3d at 354-55 (noting that 

“[e]ven where an explanation for an award is deficient or non-existent, [the court] will confirm it 

if a justifiable ground for the decision can be inferred from the facts of the case” (quoting 

Duferco Int'l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 390 (2d Cir. 2003))). 

In this case, the arbitrator indicated during the hearing that the basis of his ruling was the 
17

Hospital’s forty-three page summary judgment brief. Hearing Tr. at 81:1-7. In their motion for 

summary judgment, the respondents set forth the material facts as to which there was no genuine 

dispute and produced deposition testimony and documentary evidence to establish those facts. 

See generally Respts’ Opp’n, Ex. Q. For each of the petitioners’ claims, the respondents 

addressed the governing legal standard and identified essential elements that they believed to be 

unsupported by the record. Id. In contrast, the petitioners’ opposition to the respondents’ motion 

for summary judgment consisted primarily of conclusory arguments about why summary 

judgment was not appropriate. See generally Respts’ Opp’n, Ex. M. The only evidence offered 

in support of the petitioners’ opposition was an affidavit of Dr. Tio. Id. This record amply 

justifies the arbitrator’s decision to grant summary judgment to the respondents on some of the 

petitioners claims, and vacatur is not appropriate simply because the arbitrator ruled on the 

Hospital’s motion for summary judgment without providing a detailed explanation for his ruling. 

In sum, even after a liberal reading of the petitioners’ arguments, it is clear they have not 

established that the arbitrator acted in manifest disregard of the law by refusing to apply 

governing legal principles to their claims. Accordingly, the court declines to vacate the 

arbitrator’s ruling on this basis. 

4. The Parties’ Agreement to Split Arbitration Costs Does Not Justify Vacatur 

 The petitioners also argue that the arbitration award should be vacated because it is 

against public policy to require a claimant who is advancing a discrimination claim in an 
18

arbitration proceeding to pay half the cost of the arbitration.12 Pet. ¶ 14. Noting that the 

petitioners seem to be challenging whether the discrimination claim was properly submitted to 

arbitration in light of the fee-splitting provision, the respondents contend that the petitioners 

waived any arguments they may have had concerning the fee-splitting provision by failing to 

raise the issue until this late stage in the proceedings. See Respts’ Opp’n at 9. 

In an action to vindicate a public right, this Circuit disfavors placing the financial burden 

of arbitral proceedings on the party pursuing a claim. See Cole, 105 F.3d at 1485 (holding that 

employee could not be required to arbitrate discrimination claim as a condition of employment 

“if the arbitration agreement required him to pay all or part of the arbitrator’s fees and 

expenses”). Nonetheless, a fee-splitting provision does not impede the remedial and deterrent 

functions of the statutory right “so long as the prospective litigant effectively may vindicate his 

or her statutory cause of action in the arbitral forum.” Gilmer v. Interstate/Johnson Lane Corp., 

500 U.S. 20, 28 (1991) (alteration in original) (citing Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 637 (1985)). 

 The petitioners have no basis to challenge the fee-splitting requirement at this stage in the 

proceeding because there is no evidence that the requirement limited their ability to effectively 

vindicate Dr. Tio’s statutory cause of action. LaPrade, 246 F.3d at 708 (rejecting an employee’s 

challenge to a fee-splitting provision in an arbitration agreement because the employee did not 

claim “that the possibility of a large assessment arising from arbitration of her claims prevented 

 

12 In addition to challenging the fee-splitting provision on public policy grounds, the petitioners also 

contend that it was against public policy for the arbitrator to grant the Hospital’s motion for 

summary judgment as to Dr. Tio’s discrimination claim. See Petrs’ Mem. at 26-27. This 

argument lacks merit because, as explained above, the arbitrator did not grant summary judgment 

on Dr. Tio’s discrimination claim. See supra Part III.B.3. 
19

her from attempting to vindicate her rights” or that “the arbitration panel failed to consider the 

evidence that she submitted to show she was financially unable to pay any assessment”). Indeed, 

there is nothing in the record to suggest that the petitioners objected to sharing the burden of the 

arbitration costs until after the arbitrator entered a final arbitration award in favor of the 

respondents.13 Because the petitioners have not demonstrated that the fee-splitting requirement 

set forth in the arbitration provision of the Agreement violates public policy, their effort to have 

the arbitration award vacated on this ground fails. 

IV. CONCLUSION

 For the foregoing reasons, the court denies the petition to vacate the arbitration award. 

An Order consistent with this Memorandum Opinion is separately and contemporaneously issued 

this 30th day of November, 2010. 

 RICARDO M. URBINA 

 United States District Judge 

 

13 The petitioners had an opportunity to challenge the fee-splitting provision when their claims were 

before this court in 2004, yet they failed to object to enforcement of the arbitration provision on 

this ground. See generally Pls.’ Opp’n to Defs.’ Mot. Dismiss & Compel Arbitration, Tio, 2004 

WL 2663149. In addition, the petitioners have not argued that they unsuccessfully challenged the 

fee-splitting provision during the course of the arbitration proceedings. See generally Pet.; Petrs’ 

Mem.