Uliano v. Centers for Medicare & Medicaid Services, Boston Regional Office ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3326
DONALD F. ULIANO,
Petitioner,
v.
CENTERS FOR MEDICARE AND MEDICAID SERVICES,
BOSTON REGIONAL OFFICE,
Respondent.
__________________________
DECIDED: June 16, 2006
__________________________
Before NEWMAN, LINN, and PROST, Circuit Judges.
PER CURIAM.
Donald F. Uliano seeks review of the arbitrator's decision dismissing his grievance.
We affirm.
BACKGROUND
The arbitrator held a hearing to consider, together, the appeals of Mr. Uliano and a
fellow employee, Abraham Heitin, both of whom had brought grievances relating to their
alleged involuntary retirements from the Center for Medicare and Medicaid Services (the
"agency"). Mr. Uliano has not provided us with the events that led to his grievance;
however, Mr. Heitin's grievance related to asserted pressure to retire, including his
supervisor's threat to make him, but not other employees, account for "every minute" of his
time. Mr. Heitin's and Mr. Uliano's union representative filed a Union Management
Grievance in accordance with Article 24 of the Master Labor Agreement. The grievance
was the subject of a teleconference, the record referring for the first time to Mr. Uliano: "Mr.
Heitin and Mr. Uliano [were] present by phone." The agency rejected the grievance, finding
that the retirements of both "Mr. Heitin and Mr. Uliano" were "voluntary."
The union proceeded to arbitration, in accordance with the Labor Agreement. The
arbitrator and the parties scheduled hearings for August 5-6, 2004 and October 19-20,
2004 in Boston, Massachusetts, the location of the agency's regional office. Mr. Uliano,
through his attorney Mr. Roger Mervis, objected to the location of the hearings, stating that
the location would trigger "many stressful memories" and would aggravate "his physical and
emotional condition." Mr. Uliano later withdrew this request, and testified on August 6,
2004. His cross-examination was scheduled to begin on October 19, 2004.
On October 19, 2004, neither Mr. Uliano nor attorney Mervis was present. Mr. Eric
Pines, who represented the union and also represented Mr. Heitin, informed the arbitrator
that:
I'm here with a message, I don't represent Don Uliano, but Roger Mervis
informed as of, well the story was about a week ago I got a call from Roger
Mervis that Don Uliano did not want to testify in this case because of a
discussion he had with his therapist and emotional difficulties he's having, as
obviously were characterized from his testimony. He did not want to go
forward with the case anymore.
Then I was told I would get a firm commitment as to whether he would go
forward or not. About 20 minutes ago I finally heard again from Mr. Mervis
05-3326 2
who informed me that Mr. Uliano had informed him that he would like to
testify by telephone for the rest of his testimony . . .
Transcript at 330. The arbitrator denied the request, reasoning that:
We can't have the opportunity for him to go on as he did the last time we
were here and not have him here in person to be cross examined. And
especially in this type of case, given the claim he is making, he is either going
to have to come forward and testify, or B- two things, he can drop his case,
or I will take note of the fact, with prejudice that he failed to appear, and I will
take that into account when I make my decision.
Id. at 331. During a break, attorney Pines conveyed this decision of the arbitrator to
attorney Mervis by telephone, and then informed the arbitrator that "Mr. Mervis said Don
still would not appear for the hearing" and would only testify by telephone.
The parties and the arbitrator thereafter considered the impact of Mr. Uliano's refusal
to appear in person for cross-examination. Ms. Wilhelm, the agency's counsel, moved to
dismiss the "entire case," including the grievance of Mr. Heitin; however, the arbitrator
decided that the parties should proceed and present their remaining witnesses. In order to
determine what remaining witnesses should appear, the parties requested clarification of
the arbitrator's ruling regarding Mr. Uliano. The arbitrator stated that all of Mr. Uliano's
testimony in support of himself or Mr. Heitin would be stricken, reasoning that:
Uliano has not presented himself nor his attorney to be here to subject
himself to cross examination, therefore, the Agency has not had an
opportunity to rebut his case, therefore, I cannot rule favorably on Uliano's
case without the Agency being given the full opportunity to cross examine.
Transcript at 344. Attorney Pines then conveyed a request from attorney Mervis to
participate by telephone. The arbitrator agreed, as long as the agency was involved in the
communication. After a recess, attorney Pines informed the arbitrator that he had relayed
the arbitrator's position to attorney Mervis via voicemail and had told him that he should
05-3326 3
telephone in the next four to five minutes if he wanted to participate. No call from Mervis
was received. The parties then scheduled final briefing for December 6, 2004, and the
hearing was ended.
The next and last communication in the record concerning Mr. Uliano occurred on
January 28, 2005, when attorney Mervis sent the arbitrator an e-mail asking the arbitrator
to "please excuse this last minute communication" and exercise his discretion to keep the
record open until Mr. Uliano could complete his testimony. Attorney Mervis stated that Mr.
Uliano's therapists had recommended that he not attend the hearings, that Mr. Uliano
would still like to complete his testimony and make himself available for cross-examination,
and that he would be willing to do so in an "expeditious and cost-effective fashion (e.g.,
teleconference)." Attorney Mervis offered to provide the arbitrator with "(1) legal points and
authorities and (2) documentation of Mr. Uliano's disabilities, upon request." The record
does not contain any reply to this communication.
The arbitrator issued a written decision on June 22, 2004. As to Mr. Uliano, the
arbitrator held, "In as much, neither Counsel Mervis nor Uliano chose to come to the
hearing to be subject to cross examination for which they had been scheduled to appear
since August, they have effectively withdrawn their case, and the Uliano grievance is
dismissed." Arb. Dec. at 3. Mr. Uliano appeals, arguing, broadly, that he was inadequately
represented by counsel and by the union, and that the arbitrator should have
accommodated his physical and mental disadvantages and trauma.
05-3326 4
DISCUSSION
We review an arbitrator's decision under the same standard as for decisions of the
Merit Systems Protection Board. See 5 U.S.C. §7121(f). The arbitrator's decision must be
upheld unless it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. §7703(c); see
King v. Dep't of Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997).
Mr. Uliano states that the arbitrator's decision should be reversed based on the
alleged errors and misconduct and inadequate representation by attorneys Mervis and
Pines. Mr. Uliano states that both Pines and Mervis were aware of his inability to appear
through an e-mail sent well in advance of the hearing; he states that Pines and Mervis
intentionally abandoned his case after he informed them that "some testimony (which they
instructed me to change) on behalf of Mr. Heitin was indeed false and that I would not
commit perjury under oath." He states that attorney Pines told the arbitrator that he did not
represent Mr. Uliano, knowing full well that he represented both Mr. Uliano and Mr. Heitin.
Mr. Uliano also questions the neutrality of the arbitrator, citing the informality of e-mails
between the arbitrator and attorney Pines.
The agency replies that none of these allegations is supported by evidence. The
agency also invokes the "well settled" principle that a party is bound by his representative's
conduct. Whitaker v. Merit Sys. Prot. Bd., 784 F.2d 1109, 1110 (Fed. Cir. 1986) (citing Link
v. Wabash Railroad Co., 370 U.S. 626, 633-34 (1962)). This principle is subject to an
exception where the attorney's deceptions and negligence has thwarted the client's diligent
efforts to prosecute the suit, as in Dunbar v. Department of the Navy, 43 M.S.P.R. 640, 644
05-3326 5
(1990). We agree with the agency, however, that the record does not support an allegation
that Mr. Uliano's efforts to pursue his case were thwarted by deceptions or negligence of an
attorney. We also agree with the agency that Mr. Uliano's charges as to the neutrality of
the arbitrator are devoid of support.
Mr. Uliano states that it was arbitrary, capricious, and an abuse of discretion for the
arbitrator to dismiss his case, rather than accommodate his mental and physical disability
and allow him to testify by telephone. Mr. Uliano states that it was "highly extraordinary" for
the arbitrator to split the case, ruling favorably for Mr. Heitin but dismissing Mr. Uliano's
case. The agency responds by pointing to the importance of cross examination, see Davis
v. Alaska, 415 U.S. 308, 316 (1974) ("'The opponent demands confrontation, not for the idle
purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of
cross-examination, which cannot be had except by the direct and personal putting of
questions and obtaining immediate answers' . . . Cross-examination is the principal means
by which the believability of a witness and the truth of his testimony are tested") (quoting 5
J. Wigmore, Evidence §1395, p. 123 (3d ed. 1940)). The agency also points to the lack of
medical records or other explanation of Mr. Uliano's alleged mental or physical disabilities,
observing that Mr. Uliano had already proven capable of testifying at the August hearing,
and that Mr. Uliano stated in his informal brief that, upon additional consultation with his
therapist, he determined that he would be able to testify on October 20, 2004, the day after
the hearing had been scheduled to begin.
We do not discern reversible error in the arbitrator's insistence that Mr. Uliano must
be cross-examined in person and not by telephone. A leading treatise on arbitration has
discussed the importance of in-person testimony in arbitration:
05-3326 6
While some arbitrators have permitted telephone testimony for basic
background information or as a last resort, most arbitrators view the use of
telephone testimony with skepticism. Permitting a witness to testify by
telephone prevents both the arbitrator, and the opposing advocate, from
evaluating the witness's demeanor and thus hinders the ability to judge the
witness's credibility. It also impairs a party's right to confront and to
effectively cross-examine the witness.
Elkouri & Elkouri, How Arbitration Works 365 (6th ed. 2003). The failure of Mr. Uliano to
appear personally led to the arbitrator's conclusion that the grievance was unsupported and
must be dismissed. Upon informing Mr. Uliano's attorney, through attorney Pines, that
without such testimony he could not "rule favorably on Uliano's case," the arbitrator was led
by the absence of a timely proffer of such appearance to conclude that Mr. Uliano and his
counsel had "effectively withdrawn their case." Arb. Dec. at 3.
The Supreme Court has recognized the inherent power of a decision maker to
dismiss a case for failure to prosecute. Chambers v. NASCO, 501 U.S. 32, 49 (1991).
Similar procedure is followed in appeals to the Merit Systems Protection Board, see, e.g.,
Wright v. Dep't of Treasury, 53 M.S.P.R. 244, 252 (1992) ("An administrative judge is
authorized to impose the sanction of dismissal if a party fails to prosecute or defend an
appeal.") (citing 5 C.F.R. §1201.43(b) ("If a party fails to prosecute or defend an appeal, the
judge may dismiss the appeal")). Taking account of the informality and added flexibility of
arbitration proceedings, we do not discern arbitrary or unfair action in the arbitrator's
requirement that Mr. Uliano appear for cross-examination at the scheduled hearing. We
agree with the agency that the arbitrator's dismissal of Mr. Uliano's grievance was not
arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.
Further, it was not obtained without procedures required by law, rule or regulation having
05-3326 7
been followed, and is not unsupported by substantial evidence. See §7703(c). The
arbitrator's decision is affirmed.
No costs.
05-3326 8