The Honorable H. Franklin Waters, United States District Judge for the Western 1

District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 97-2718/2739

___________

Val-U Construction Company of *

South Dakota, *

*

Appellee/Cross-Appellant, *

*

* Appeal from the United States 

* District Court for the

v. * District of South Dakota.

*

Rosebud Sioux Tribe and the * 

United States for the use and *

benefit of the Rosebud Sioux Tribe, *

*

Appellants/ Cross-Appellees. *

___________

Submitted: March 11, 1998

Filed: June 9, 1998

___________

Before BEAM and HEANEY, Circuit Judges, and WATERS, District Judge. 1

___________

WATERS, District Judge.
The Honorable Charles B. Kornmann, United States District Judge for the

2

District of South Dakota.

–2–

The Rosebud Sioux Tribe (the "Tribe") appeals the district court's entry of

2

summary judgment in favor of Val-U Construction Company of South Dakota ("ValU") on the issue of whether an award Val-U obtained from an arbitration hearing, in

which the Tribe chose not to participate, is valid. Val-U cross-appeals the district

court's denial of its motion to amend the judgment to include prejudgment interest from

the date of the arbitration award to the entry of judgment.

I. BACKGROUND

In July of 1989, the Tribe and Val-U entered into a contract for the construction

of housing units on the Rosebud Sioux Indian Reservation. The contract contained an

arbitration provision. Problems arose during the performance of the contract and the

Tribe terminated the contract in September of 1990. Val-U demanded arbitration of

the contract termination, but the Tribe refused to participate in the arbitration

proceedings. Instead, the Tribe filed a lawsuit in federal court. The following is an

outline of the factual and procedural history relevant to the court's opinion in this case.

October 26, 1990 Val-U filed a demand for arbitration of the contract

termination with the American Arbitration Association

("AAA").

December 11, 1990 The Tribe notified the AAA that it would not participate

in arbitration based on principles of sovereign immunity.

March 5, 1991 The AAA advised the Tribe that a hearing in the matter

would begin on May 6, 1997.
–3–

April 9, 1991 The Tribe filed suit in the United States District Court

for the District of South Dakota against Val-U claiming,

among other things, breach of contract.

May 3, 1991 Val-U filed an answer and pleaded as an affirmative

defense the contract's arbitration clause and, later,

collateral estoppel based on the subsequent arbitration

award in its favor. Val-U also asserted various

counterclaims, including breach of contract. (The district

court did not compel arbitration of the Tribe's claims

against Val-U, or stay the arbitration of Val-U's claims

against the Tribe).

May 6, 1991 The AAA held an arbitration hearing and Val-U

presented its case. The Tribe was not represented at the

hearing.

May 23, 1991 The Tribe reasserted its position to the AAA that it did

not believe it had to participate in arbitration based on

principles of sovereign immunity.

May 29, 1991 The Tribe acknowledged receipt of the "proposed"

arbitration award by the AAA and again stated its

position that it was not bound by such an award under

principles of sovereign immunity.

June 18, 1991 The AAA issued an award in favor of Val-U, finding the

Tribe in breach of the contract and awarded Val-U

$793,943.58, plus interest, fees, and costs. A copy of

the award was forwarded to the Tribe on June 20, 1991.
–4–

March 30, 1994 The district court, the Honorable John B. Jones, upon the

Tribe's motion for a voluntary dismissal, dismissed the

Tribe's claims with prejudice, and dismissed Val-U's

breach of contract claim on the basis that it was barred

by the Tribe's sovereign immunity to the extent it sought

recovery beyond recoupment. 

March 16, 1995 Val-U appealed the dismissal of its counterclaims against

the Tribe. On appeal, we held that the arbitration clause

waived the Tribe's sovereign immunity as to all claims

under the contract. Thus, we remanded to the district

court to hear Val-U's counterclaims, and to determine the

validity of the arbitration award Val-U obtained against

the Tribe. See Rosebud Sioux Tribe v. Val-U Const. Co.

of South Dakota, Inc., 50 F.3d 560 (8th Cir. 1995). 

March 6, 1997 On remand, the district court, the Honorable Charles B.

Kornmann, upon consideration of Val-U's motion for

summary judgment, held that the doctrine of res judicata

barred the Tribe from challenging the arbitration award

and ordered the clerk to enter judgment in favor of Val-U

in the amount of the arbitration award.

May 15, 1997 The district court denied Val-U's motion to amend the

judgment to include pre-judgment interest from the date

of the arbitration award to the entry of judgment
–5–

II. THE TRIBE'S APPEAL

The issues presented by the Tribe's appeal were decided by summary judgment.

The court reviews a district court's grant of summary judgment de novo, and examines

the record in the light most favorable to the nonmoving party. Lang v. Star Herald, 107

F.3d 1308, 1311 (8th Cir.), cert. denied, 118 S. Ct. 114 (1997). See also Fed. R. Civ.

P. 56(c).

A.

The Tribe's first argument on appeal concerns the court's previous opinion in this

case on the issue of sovereign immunity. Specifically, the Tribe asserts that both the

Supreme Court and the Eighth Circuit cases have consistently held that, absent a clear

and unequivocal waiver, Indian tribes possess sovereign immunity. The Tribe further

asserts that the prevailing federal law at the time that Val-U demanded arbitration was

that an arbitration provision in a contract was not a clear and unequivocal waiver of

sovereign immunity. Thus, the Tribe contends that when this court held in Rosebud,

supra, that the arbitration provision in the contract constituted a waiver of sovereign

immunity, the decision was contrary to the prevailing federal law on what represents

a waiver of sovereign immunity. Therefore, the Tribe asserts that our decision in

Rosebud should only be applied prospectively. 

It is well established that Indian tribes posses the same common-law immunity

from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo v. Martinez,

436 U.S. 49, 58 (1978) (citations omitted). The Supreme Court has stated that "[t]his

aspect of tribal sovereignty, like all others, is subject to the superior and plenary control

of Congress. But without congressional authorization, the Indian Nations are exempt

from suit." Id. (internal quotation marks and citation omitted). Furthermore, the

Supreme Court has made it clear that "a waiver of sovereign immunity cannot be
–6–

implied but must be unequivocally expressed." Id. (internal quotation marks and

citations omitted).

This court has also recognized a tribe's sovereign immunity and has held that a

waiver of immunity cannot be implied but must be unequivocally expressed. See

Rosebud, 50 F.3d at 562; Weeks Const. Inc. v. Oglala Sioux Housing Authority, 797

F.2d 668, 670 (8th Cir. 1986). In Rosebud, we addressed the issue of whether an

arbitration clause in a contract constituted a waiver of sovereign immunity. The

arbitration provision reads: "[a]ll questions of dispute under this agreement shall be

decided by arbitration in accordance with the Construction Industry Arbitration Rules

of the American Arbitration Association." Appellant's Separate Appendix at 92. We

found that the language of the arbitration clause was "spare but explicit that disputes

under the contract 'shall be decided by arbitration.'" Rosebud, 50 F.3d at 562.

Therefore, we concluded that "the parties clearly intended a waiver of sovereign

immunity . . . ." Id. We noted that "while the Supreme Court has expressed its

protectiveness of tribal sovereign immunity by requiring that any waiver be explicit, it

has never required the invocation of 'magic words' stating that the tribe hereby waives

its sovereign immunity." Id. at 563. 

The Tribe contends that our decision in Rosebud was inconsistent with our

previous holding in American Indian Agric. Credit Consortium, Inc. v. Standing Rock

Sioux Tribe, 780 F.2d 1374 (8th Cir. 1985). In Standing Rock, we held that an Indian

tribe had not waived its sovereign immunity through certain language in a promissory

note. Specifically, the promissory note provided for several remedies in the event of

a default by the Standing Rock Sioux Tribe, "in addition to such other and further rights

and remedies provided by law." Id. at 1376. The note also awarded attorney fees in

the event of a collection action and stated that the law of the District of Columbia

would apply. In refusing to find an express waiver in the language of the promissory

note, we stated that "Standing Rock did not explicitly consent to submit any dispute

over repayment on the note to a particular forum, or to be bound by its judgment." Id.
–7–

at 1380. We noted that the promissory note did not "expressly speak to Standing

Rock's consent to suit or to waiver of immunity from suit." Id. at 1376 (footnote

omitted). The court stated that to find an express waiver of sovereign immunity in such

language "simply asks too much." Id. at 1381. 

In Rosebud, we distinguished Standing Rock by stating that unlike Standing

Rock:

the parties [in Rosebud] specifically designated an arbitral forum to settle

disputes under the contract, as well as arbitration rules that explicitly

provide for judicial enforcement of any arbitration award. The parties

clearly manifested their intent to resolve disputes by arbitration, and the

Tribe waived its sovereign immunity with respect to any disputes under

the contract.

Id. at 563. Thus, our opinion in Rosebud was consistent with our holding in Standing

Rock because in Rosebud we determined that by agreeing to arbitration, the Tribe

expressly consented to submit any disputes arising under the contract to arbitration and

to be bound by the arbitrator's determination. Therefore, we did not imply a waiver of

sovereign immunity as the Tribe suggests. 

The Supreme Court has recently held that: 

[i]n the ordinary case, no question of retroactivity arises. Courts are as

a general matter in the business of applying settled principles and

precedents of law to the disputes that come to bar. . . . Where those

principles and precedents antedate the events on which the dispute turns,

the court merely applies legal rules already decided, and the litigant has

no basis on which to claim exemption from those rules. It is only when

the law changes in some respect that an assertion of nonretroactivity may

be entertained, the paradigm case arising when a court expressly overrules

a precedent upon which the contest would otherwise be decided
The Tribe asserts that our decision was contrary to Pan America Co. v. Sycuan 3

Band of Mission Indians, 884 F.2d 416, 420 (9th Cir. 1989), where the court held that

an arbitration clause in a contract does not effect a waiver of a tribe's sovereign

immunity. It goes without saying, however, that the state of the law in the Ninth Circuit

at the time the Tribe refused to arbitrate is not controlling precedent in this circuit.

–8–

differently and by which the parties may previously regulated their conduct.

James B. Beam Distilling, Co. v. Georgia, 501 U.S. 529, 534 (1991) (citation omitted).

We conclude that our decision in Rosebud was not contrary to the principles and

precedents relating to waivers of tribal sovereign immunity. Moreover, our opinion in

Rosebud did not overrule a previous opinion or decision of this court. Indeed, we

3

were simply applying the law at the time to the facts presented before us. The Tribe,

or its counsel, simply misjudged how the court would rule in this instance. Judge

Kornmann described the Tribe's course of conduct best in his opinion on this issue:

[t]he Tribe, represented by counsel of their choosing, consciously and

intentionally took a reckless and totally ill-conceived course without any

substantial legal basis. The Tribe argues that the Eighth Circuit decision

in this case changed existing law. That argument is rejected. There was

no Eighth Circuit case directly on point. While the Tribe obviously did

not correctly anticipate the appellate ruling as to sovereign immunity, they

had no way of knowing or even forecasting what that decision would

ultimately be. There is no dispute that the Tribe had repeated notices

from the arbitrator and a great deal of time to carefully decide what to do.

* * * The extremely high risk strategy used by the Tribe and their

attorneys (and it is important to note that the Tribe's present attorneys had

no part in such decisions) was akin to being served with process in a

lawsuit and ignoring the matter, hoping that an appellate court would

ultimately find lack of jurisdiction. This is inexcusable neglect. 

Appellant's Addendum at 3.
We note that this case was not decided by default. Val-U presented evidence 4

to the arbitrator at the hearing, and the arbitrator issued an award based on the evidence

submitted. This is in accordance with Rule 30 of the Construction Industry Arbitration

Rules which forbids an award to be issued solely on the default of a party. 

–9–

Therefore, we hold that our opinion in Rosebud should be applied retroactively.

As a result, the Tribe is not entitled to sovereign immunity from Val-U's breach of

contract claims. 

B.

The rest of the Tribe's arguments concern the validity of the arbitration award.

First, the Tribe contends that the preferred disposition of a case is on the merits and not

by default. The Tribe asserts that the arbitration award should be vacated, and it

4

should be given an opportunity to present its case because: (1) significant sums of

money are involved; (2) significant facts exist that establish the Tribe has a meritorious

defense against Val-U's claims; and (3) the Tribe did not participate in the arbitration

proceedings based on its determination that the law at the time afforded it sovereign

immunity from such a proceeding. We have already determined that the Tribe acted

unreasonably in refusing to participate in the arbitration hearing based on its belief that

it possessed immunity from suit, and thus, unless the Tribe can show that, under the

Federal Arbitration Act (the "FAA"), it is entitled to have the award vacated, the award

should be upheld. 

This court recently held that "[j]udicial review of an arbitration award is

extremely limited. Beyond the grounds for vacation provided in the FAA, an award

will only be set aside where 'it is completely irrational or evidences a manifest disregard

for the law.'" Kiernan v. Piper Jaffray Companies, Inc., 137 F.3d 588, 594 (8th Cir.

1998) (quoting Lee v. Chica, 983 F.2d 883, 885 (8th Cir. 1993) (internal quotation

marks and citations omitted)).
–10–

Under the FAA, a court may vacate an arbitration award in any of the following

cases: (1) where the award was procured by corruption, fraud, or undue means; (2)

where there was evident partiality or corruption in the arbitrators; (3) where the

arbitrators were guilty of misconduct in refusing to postpone the hearing, or in refusing

to hear evidence material to the controversy, or of any other misbehavior; or (4) where

the arbitrators exceeded their powers, or so imperfectly executed them that a mutual,

final, and definite award upon the subject matter was not made. 9 U.S.C.A. § 10(a)

(Supp. 1997). Under § 12 of the FAA, a party can file a motion to "vacate, modify, or

correct an award." 9 U.S.C.A. § 12 (1970). Such a motion, however, "must be served

upon the adverse party or his attorney within three months after the award is filed or

delivered." Id. Furthermore, we have held that a "failure to file a motion to vacate,

modify, or correct within three months of either the initial award or the Clarification of

Award waived any defenses to confirmation that might be asserted in a timely motion

to vacate." Domino Group, Inc. v. Charlie Parker Memorial Foundation, 985 F.2d 417,

419 (8th Cir. 1993) (citations omitted). 

First, there is no evidence that the Tribe ever made any motion to the district

court to vacate the arbitration award. Second, even if the Tribe had made such a

motion, the Tribe would not have been entitled to an order vacating the award. The

Tribe has not contended that Val-U obtained its arbitration award through fraud and

there is no evidence of corruption in the arbitration proceedings. In addition, the Tribe

never requested that the AAA postpone the hearing until the issue of sovereign

immunity was resolved. Thus, in addition to the fact that it appears the Tribe's motion

to vacate the arbitration award is clearly untimely, there are no grounds under the FAA

to grant such a request. We cannot say that the arbitration award is completely

irrational or evidences a manifest disregard for the law. 

The Tribe relies on the case of Food Handlers Local 425, Amalgamated Meat

Cutters and Butcher Workmen of North America, AFL-CIO v. Pluss Poultry, Inc., 260

F.2d 835, 837 (8th Cir. 1958), where the court held that an arbitration clause must
–11–

contain a provision that permits one party to initiate and prosecute to a conclusion an

arbitration proceeding without the other party's participation. Otherwise, the court

held, an award obtained under such circumstances is void and unenforceable.

In Food Handlers, there was a collective bargaining agreement providing that

disputes arising between the employer and the union could be submitted by either party

to the Board of Arbitrators. The arbitration provisions in the agreement provided that

the Board of Arbitrators would consist of a three member panel, one member to be

appointed by each party, and a third member to be chosen by the first two members.

A dispute arose and the union demanded arbitration, however, the employer contended

that the disputes were not arbitrable, and refused to cooperate in the arbitration

proceedings. The district court held that the arbitration award was void and

unenforceable and this court affirmed. In doing so, the court held that the employer

never consented to arbitration of disputes where it took no part in the selection of any

arbitrator. 

We believe that Food Handlers is easily distinguished. In this case, the parties

agreed that "[a]ll questions of dispute under this agreement shall be decided by

arbitration in accordance with the Construction Industry Arbitration Rules of the

American Arbitration Association." Appellant's Separate Appendix at 92. Rule 30 of

the Construction Industry Arbitration Rules of the American Arbitration Association

states that:

[u]nless the law provides to the contrary, the arbitration may proceed in

the absence of any party or representative who, after due notice, fails to

be present or fails to obtain a postponement. An award shall not be made

solely on the default of a party. The arbitrator shall require the party who

is present to submit such evidence as the arbitrator may require for the

making of an award.
We note that the Tribe asserts in its brief that the contract with Val-U was never 5

approved by the Bureau of Indian Affairs, and thus, the validity of the contract and the

arbitration provision is at issue. See 25 U.S.C.A. § 81 (1983) (Secretary of the Interior

and the Commissioner of Indian Affairs must approve all contracts made with Indians

or Indian tribes "relative to their lands."). Furthermore, the Tribe indicates that it may

have been "duped into making such agreement." Brief of Appellant at 26 n. 6. We find

the Tribe's arguments totally without merit. The court has reviewed each of the letters

written by the Tribe's counsel at the time, Mason D. Morisset, and at no time did Mr.

Morisset even suggest that the agreement was invalid, or that the Tribe was

fraudulently induced into signing it. In addition, he did not assert that the arbitration

clause was not part of the agreement. Moreover, the Tribe did not assert these

arguments in the district court, and thus, we will not address them here. 

–12–

Therefore, unlike the employer in Food Handlers, the Tribe agreed, via the

arbitration clause, that an arbitration hearing may proceed in its absence as long as it

was given notice of the hearing and an opportunity to obtain a postponement of the

hearing. Val-U asserts that it presented evidence before the arbitrator and based on the

evidence offered, the arbitrator entered a final award. In our view, the Tribe agreed to

this possibility and is undeserving of an order vacating the award.5

C.

The Tribe contends that because Val-U never sought to compel the Tribe to

participate in the arbitration proceedings, the Tribe was not obligated to participate in

the hearing. The Tribe asserts that Val-U clearly had this mechanism available to them,

and because they did not use it, the Tribe had no duty to participate at the arbitration

hearing.

Section 4 of the FAA states that: "[a] party aggrieved by the alleged failure,

neglect, or refusal of another to arbitrate under a written agreement for arbitration may

petition any United States district court . . . for an order directing that such arbitration
–13–

proceed in the manner provided for in such agreement." 9 U.S.C.A. § 4 (1970)

(emphasis added). Other circuits have held that the procedural requirements of § 4 are

permissive, not mandatory. See Bernstein Seawell & Kove v. Bosarge, 813 F.2d 726,

733 (5th Cir. 1987); Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir.

1953). 

We believe that § 4 of the FAA is clearly permissive. As such, Val-U was not

required to petition the district court for an order compelling the Tribe to participate in

the arbitration proceedings. 

D.

The Tribe asserts that at the time that the arbitration hearing took place, this

lawsuit was pending in federal district court. Thus, the Tribe contends that Val-U was

required to move the district court to stay the federal lawsuit pending the outcome of

the arbitration proceedings.

Section 3 of the FAA states that:

[i]f any suit or proceeding is brought in any of the courts of the United States

upon any issue referable to arbitration under an agreement in writing for such

arbitration, the court in which such suit is pending, upon being satisfied that the

issue involved in such suit or proceeding is referable to arbitration under such

an agreement, shall on application of one of the parties stay the trial of the action

until such arbitration has been had in accordance with the terms of the

agreement, providing that the applicant for the stay is not in default proceeding

with such arbitration.

9 U.S.C.A. § 3 (1970).
–14–

Section § 3, like § 4, is permissive, not mandatory. Nowhere in the statute does

it require either party to file a motion to stay. Thus, Val-U was not required to file a

motion in district court to stay the lawsuit pending the outcome of the arbitration

hearing.

E.

The Tribe contends that while Val-U secured an arbitration award in this case

in June 1991, it has never taken any steps to confirm the award. The Tribe asserts that

even if its motion for summary judgment in this case is considered as an effort to

confirm its judgment, that motion was not made until August 10, 1993, more than two

years after the award was entered. The Tribe asserts that Val-U should be estopped

from pursuing enforcement of the arbitration award.

Section 9 of the FAA states that:

[i]f the parties in their agreement have agreed that a judgment of the court

shall be entered upon the award made pursuant to the arbitration, and

shall specify the court, then at any time within one year after the award is

made any party to the arbitration may apply to the court so specified for

an order confirming the award, and thereupon the court must grant such

an order unless the award is vacated, modified, or corrected as prescribed

in sections 10 and 11 of this title.

9 U.S.C.A. § 9 (1970).

The Fourth Circuit has held that the language of § 9 is permissive, that the oneyear period is not a statute of limitations, and that a party may apply for confirmation

of an award beyond the one-year period. Sverdrup Corp. v. WHC Constructors, Inc.,

989 F.2d 148 (4th Cir. 1993). The court stated that if it construed § 9 to be a statute

of limitations, the court "would merely encourage, at the expense of judicial economy,
–15–

the use of another analogous method of enforcing awards." Id. at 155. But cf., In re

Consolidated Rail Corp., 867 F. Supp. 25 (D.D.C. 1994) (holding that a party may

apply for confirmation only within the one year period). 

We hold that § 9 is a permissive statute and does not require that a party file for

confirmation within one year. If Congress intended for the one year period to be a

statute of limitations, then it could have used the word "must" or "shall" in place of

"may" in the language of the statute. Thus, Val-U may seek confirmation of its award

more than one year after the award was issued. 

F. 

The Tribe asserts that the lower court erred when it determined that the

unconfirmed arbitration award was res judicata and entered summary judgment in ValU's favor. The Tribe cites Gruntal & Co. v. Steinberg,854 F. Supp. 324 (D.N.J. 1994),

where the court held that "[a]bsent judicial confirmation, an arbitration award will not

result in a final judgment and cannot, therefore, have preclusive effect on subsequent

litigation." Id. at 337 (internal quotation marks, footnote and citation omitted). 

Val-U asserts that the award is a final judgment on the merits. Val-U contends

that the fact that the award was not confirmed is irrelevant because given the summary

nature of a confirmation proceeding, and the limited review a court of appeals has in

such cases, confirmation would have easily been obtained. Thus, Val-U asserts that

having the award confirmed would have changed nothing in this case and the Tribe

should not be able to avoid the doctrine of res judicata on this issue.

The doctrine of res judicata bars a party from asserting a claim if three

requirements are met: "(1) the prior judgment was entered by a court of competent

jurisdiction; (2) the decision was a final judgment on the merits; and (3) the same cause
We note that the Second Circuit in Jacobson declined to follow its earlier

6

opinion in Leddy v. Standard Drywall, Inc., 875 F.2d 383, 385 (2nd Cir. 1989), where

it held that an unconfirmed arbitration award could not be given preclusive effect.

Leddy was one of the cases relied upon by the district court in Gruntal, supra.

–16–

of action and the same parties or their privies were involved in both cases." United

States v. Brekke, 97 F.3d 1043, 1047 (8th Cir. 1996) (citations omitted). The Tribe

asserts that in each of the cases where this court determined that an arbitrator's award

constituted a final judgment on the merits, both parties had been a part of the arbitration

proceedings and had been able to argue their case on the merits. The Tribe contends

that it would be unfair in this case to award Val-U judgment against the Tribe when the

Tribe has not had the opportunity to present its claims and defenses.

The court, although not addressing "unconfirmed awards," has held that an

arbitrator's award constitutes a final judgment for the purposes of collateral estoppel.

See American Federation of Television & Radio Artists Heath & Retirement Funds v.

WCCO Televison, Inc., 934 F.2d 987, 991 (8th Cir. 1991). In holding that the award

was a final judgment, the court noted that the parties "had a full and fair opportunity to

litigate the issue in that proceeding." Id.

In Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1169 (8th Cir. 1989),

however, we stated that for purposes of collateral estoppel "[t]he fact that the award

in the present case was not confirmed by a court and was modified by a subsequent

settlement agreement does not vitiate the finality of the award." The Second Circuit

has expressly held that, under New York law, an unconfirmed arbitrator's award can

furnish the basis for res judicata. Jacobson v. Fireman's Fund. Ins. Co., 111 F.3d 261,

267-68 (2nd Cir. 1997).6
–17–

We conclude that the Tribe's breach of contract claims are barred by the

arbitration award. The Tribe was given a full and fair opportunity to litigate the issues

at the arbitration hearing, but chose not to participate in the hearing, knowing full well

that an award would be entered against it by the arbitrator. It is clear that had Val-U

filed for confirmation of its award prior to filing its motion for summary judgment, the

district court would have confirmed the award because under the FAA, confirmation

of an arbitration award is mandatory unless the award is vacated, modified or corrected.

Indeed, we have stated that "[a]bsent a timely motion to vacate, in most cases the

confirmation of an arbitration award is a summary proceeding that makes what is

already a final arbitration award a judgment of the court." Domino Group, Inc., 985

F.2d at 420 (internal quotation marks and citation omitted). It appears from the record

that the district court simply confirmed the arbitration award at the same time that it

granted summary judgment in favor of Val-U. Therefore, we hold that the principles

of res judicata and collateral estoppel apply to the arbitration award in this case.

II. VAL-U'S CROSS-APPEAL

The issue presented on cross-appeal was not decided by the summary judgment

motion, but was decided by the court on Val-U's motion to amend the judgment. A

decision to deny prejudgment interest is reviewed on appeal under the abuse of

discretion standard. Smith v. World Ins. Co., 38 F.3d 1456, 1467 (8th Cir. 1994). 

Val-U asserts that it is entitled to prejudgment interest from the date of the

arbitration award to the date of the entry of judgment. Val-U contends that in this case,

judgment was awarded to Val-U in 1991, that the Tribe has had the use and benefit of

its money for over six years, and that there are no exceptional circumstances that would

make such an award inequitable.
–18–

This court has held that:

[a]s a general rule, prejudgment interest is to be awarded when the

amount of the underlying liability is reasonably capable of ascertainment

and the relief granted would otherwise fall short of making the claimant

whole because he or she has been denied the use of money which was

legally due.

Stroh Container Co. v. Delphi Ind., Inc., 783 F.2d 743, 752 (8th Cir. 1986) (citations

omitted). In addition, the court stated that "awarding prejudgment interest is intended

to serve at least two purposes: to compensate prevailing parties for the true costs of

money damages incurred, and, where liability and the amount of damages are fairly

certain, to promote settlement and deter attempts to benefit unfairly from the inherent

delays of litigation." Id. The court held that prejudgment interest should be awarded

"unless exceptional or unusual circumstances exist making the award of interest

inequitable." Id. (citations omitted). 

The district court, relying on our opinion in Stroh, found that prejudgment

interest would be inequitable in this case because Val-U was dilatory in getting the

award confirmed, did not seek a stay of the proceedings, and did not seek an order to

compel the Tribe to participate. The district court determined that Val-U should not

be rewarded for such delays. We cannot say that the district judge abused his

discretion in not awarding pre-judgment interest in this case. 

III. CONCLUSION

The district court's entry of summary judgment in favor of Val-U is affirmed in

full. The district court's denial of Val-U's motion to amend the judgment is also

affirmed.
–19–

A true copy.

 ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.