Bank of America, N.A. v. District of Columbia ( 2013 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 10-CV-78
BANK OF AMERICA, N.A., et al., APPELLANTS,
v.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CAB-7763-08)
(Hon. Joan Zeldon, Motions Judge)*
(Hon. Frank Burgess, Motions Judge)**
(Argued October 19, 2011 Decided November 27, 2013)
Ava E. Lias-Booker, with whom Samantha Thompson, Brian A. Kahn,
Adrienne J. Lawrence, and Michelle N. Lipkowitz, were on the brief, for appellants.
Stacy L. Anderson, Assistant Attorney General, with whom Irvin B. Nathan,
Acting Attorney General for the District of Columbia at the time the brief was filed,
Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General,
were on the brief, for appellee.
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and WAGNER,
Senior Judge.
*
Judge Zeldon decided the Motion to Compel Arbitration.
**
Judge Burgess decided the Motion to Stay.
2
WAGNER, Senior Judge: Appellants, Bank of America, N.A. and Bank of
America Corporation (hereinafter collectively referred to as Bank of America or the
Bank), appeal from an order of the trial court denying the Bank’s motion to compel
arbitration under the Federal Arbitration Act (FAA) of the District of Columbia’s
claims for damages for losses incurred as the result of a protracted fraudulent scheme
perpetrated by the District’s employees and allegedly facilitated by Bank of America.
Bank of America argues that the trial court erred in its ruling because all of the
District’s claims are within the scope of a contractual agreement that requires
arbitration in the state of North Carolina. The District’s position is that there was no
valid arbitration agreement, or alternatively, its claims do not fall within the scope of
any agreement between the parties. We affirm the decision of the trial court holding
that the parties had no valid agreement to arbitrate their dispute in North Carolina or
elsewhere and retaining jurisdiction of the District’s claim under the Fraud Claims
Act. We remand the case to the trial court for further proceedings consistent with this
opinion as it relates to the remaining counts of the District’s amended complaint.
I. Procedural Background
This action arises out of a fraudulent scheme by a former manager in the
3
District’s Real Property Tax Administration Adjustment Unit in its Office of Tax and
Revenue. The District filed a complaint against Bank of America, Walter R. Jones,
Jr., Harriette Walters, Jayrece Elaine Turnbull, and unknown Jane and John Does
alleging that they participated in a conspiracy that utilized a Controlled Disbursement
Account (CDA or CD Account) that the District maintained with Bank of America
to process fraudulent tax refund checks. Specifically, the District alleged that
Walters, a former District employee, used her knowledge of the District’s property
tax refund process to prepare and ensure approval of the fraudulent checks which
were given to co-conspirators to deposit or cash through the Bank. According to the
complaint, Jones, an assistant branch manager for the Bank, and other unknown bank
personnel facilitated the negotiation of the fraudulent checks. As theories of liability,
the District asserted: (1) violation of the Uniform Commercial Code (UCC) (D.C.
Code § 28:3-404 (2001)); (2) violation of UCC § 28:3-405; (3) negligence; (4) fraud;
(5) breach of fiduciary duty; (6) conversion; (7) violation of the D.C. False Claims
Act (FCA) (D.C. Code § 2-308.14 (2006 Repl.));1 and (8) negligence in training,
hiring and supervising bank personnel. As relief, the District sought repayment of all
funds lost totaling $39,212,815.24. Under the False Claims Act, it sought treble
damages of $117,212,815.24, penalties of $10,000 plus costs and attorney’s fees.
1
This provision has been recodified at D.C. Code § 2-381.02.
4
The Bank filed a “Motion to Dismiss, or in the Alternative, Stay Based on
Forum Selection and Arbitration Clauses,” which the trial court treated as a Motion
to Compel Arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. In its
motion, the Bank asserted that the District’s claims are subject to arbitration pursuant
to a clause in its Treasury Service Booklet (TSB) requiring arbitration of disputes
related to the account or bank services and a forum selection clause in its Deposit
Agreement (DA) requiring any proceeding regarding the CD Account to be brought
in North Carolina. Concluding that the parties’ voluminous filings did not make clear
what documents controlled the dispute, the trial court held an evidentiary hearing in
order to ascertain whether they had an agreement to arbitrate in North Carolina.
Following completion of the hearing proceedings, the trial court denied the Bank’s
motion by written order in which it found that the parties’ 2005 contract provisions
superseded any dispute resolution or forum selection clauses previously agreed upon
and that the signatories to any documents executed subsequently lacked authority to
bind the District to arbitration in North Carolina. The court retained jurisdiction of
the False Claims Act count explaining that the FCA is a part of the Procurement
Practices Act of 1985 (PPA), which the parties incorporated into their 2005
agreement, and that actions thereunder are within the Superior Court’s exclusive
5
jurisdiction under D.C. Code § 2-301 et seq.2 The court dismissed the District’s
remaining claims, holding that they are within the exclusive jurisdiction of the
District’s own contracting officer and the Contract Appeals Board (CAB).
The Bank filed a motion to alter or amend the trial court’s order and to certify
certain rulings to this court for review. The Bank noted this appeal before the trial
court (J. Zeldon) denied the motion to alter or amend. The trial court (J. Burgess)
granted the Bank’s motion to stay the proceedings on the FCA claim and stayed the
dismissal of the District’s remaining counts. However, the order permitted the
District to pursue its contract claims before the District’s Contracting Officer.
The Bank filed in this court a Motion to Stay Proceedings, or in the Alternative
Enjoin the District Pending Appeal, in which it requested a stay or injunction to
prevent the District from initiating proceedings before a contracting officer during the
pendency of this appeal. This court denied that motion and ordered the Bank to show
cause why the appeal should not be dismissed for lack of jurisdiction as having been
taken from a non-final order, citing In re Calomiris, 894 A.2d 408, 408 (D.C. 2006),
2
The Procurement Practices Reform Act of 2010 which came into effect April
8, 2011, repealed these provisions. See D.C. Law 18-371, § 1201 (a), 58 D.C. Reg.
1185 (Apr. 8, 2011).
6
Hercules & Co. v. Beltway Carpet Serv., Inc., 592 A.2d 1069, 1071 n.6 (D.C. 1991),
and D.C. Code § 11-721 (d) (2001). Without resolving the jurisdictional question,
this court issued an order vacating the Show Cause order, stating that “[t]he Supreme
Court’s decision in Andersen LLP v. Carlisle, 129 S. Ct. 1896 (2009) may [a]ffect the
applicability of Calomiris, 894 A.2d at 410.” In that order, this court set a briefing
schedule and requested the parties to discuss the opinion in Carlisle in their briefs.
For the reasons set forth in part III A., infra, we conclude that this court has
jurisdiction of the appeal.
II. Factual Background and Trial Court’s Decision
A. Factual Summary
Before addressing the issues, we outline in some detail the factual background
essential to an understanding of the parties’ arguments and our disposition. At least
since the 1990s, the District has maintained a Controlled Disbursement Account with
Bank of America or its predecessors.3 In July 1999, after Bank of America merged
3
“A CDA is a specialized business service for deposit accounts through which
the District of Columbia is notified, at a specific time each business day, of the
(continued...)
7
with its most recent predecessor, Nations Bank, the account was maintained in North
Carolina. On January 6, 2000, Valerie Holt, then Chief Financial Officer (CFO) for
the District, executed a “Certified Copy of Corporate Resolutions — Opening and
Maintaining Deposit Accounts and Services,” which designated the CFO, the Deputy
CFO/Treasurer, and the Associate Treasurer as persons authorized “to execute and
sign any application, deposit agreement, signature card and any other documentation
required by the Bank to open said accounts.”4 That same day, CFO Holt signed a
signature card for the CDA and verified the signatures of three others to act under the
3
(...continued)
number and amount of all District-issued checks that will be presented for payment
that day. . . . The service allows the District to transfer to its CDA the exact amount
of money necessary to cover the checks presented and to allow idle funds to be
invested elsewhere.”
4
The Corporate Resolution also authorized the named individuals to do the
following:
to enter any agreements with the Bank for the provision by
the Bank of various Treasury Management services to [the
District of Columbia] as such officer or employee may
determine, in his or her sole discretion, and to sign any and
all documents and take all actions required by the Bank
relative to such Treasury Management services . . . and that
any such Treasury Management agreement(s) shall remain
in full force and effect until written notice to terminate
given in accordance with the terms of any such agreement
shall have been received by the bank. . . .
8
Corporate Resolution.5 The signature card states that by signing, the signatory agrees
that the account is to be governed by the terms and conditions set forth in the Bank’s
Deposit and Disclosures Agreement (Deposit Agreement), including any
amendments. The trial court found that all relevant Deposit Agreements specify
North Carolina as the location for resolution of disputes and give the Bank the right
unilaterally to amend its own Deposit Agreement. According to evidence at the
hearing, completion of a signature card was required to add signatories to the account.
Between 2000 and November 13, 2005, a number of District officials signed
signature cards to add or remove names from the account. These included CFO Dr.
Natwar Gandhi, successor to CFO Holt, Associate Treasurer Lasana Mack, and
Interim Associate Treasurer Alcindor Rosier. One of the signature cards signed by
Dr. Gandhi stated that by signing, he “agree[d] . . . [t]o be governed by the terms and
conditions” set forth in the Deposit Agreement. Dr. Gandhi, Mr. Mack, and Mr.
Rosier testified that they signed signature cards only to open an account or to add or
remove signatories.
On September 25, 2000, Acting Deputy CFO/Treasurer, John Robinson, and
5
In addition the CFO Holt, Dr. William Hall, Deputy CFO and Treasurer, and
two Associate Treasurers were identified as persons authorized to act under the
Corporate Resolution.
9
Interim Associate Treasurer and Bank Manager, Alcindor Rosier, executed an
“Authorization and Agreement for Treasury Services” (Authorization) agreeing to be
bound by the Treasury Booklet. The trial court found that the 2000 Corporate
Resolution authorized Rosier and Robinson to enter an agreement for treasury
services. On September 25, 2000, Associate Treasurer Lasana Mack signed a
certification attesting to the authenticity of the signatures of Rosier and Robinson and
to his own authority to execute the certification. The certification form states that
“[i]f the client is a governmental entity, the entity’s counsel must sign this
Certification.” Mr. Mack was not the District’s counsel or a lawyer. A clause in the
referenced Treasury Booklet provides for services described therein to be arbitrated
“in accordance with the United States Arbitration Act . . . under the Commercial
Arbitration Rules of the American Arbitration Association” (AAA Rules). The trial
court found that although the Authorization states “in small print” that the Client
received a copy of the Authorization and Agreement for Treasury Services, there was
no evidence that the Booklet was provided to Robinson and Rosier when they signed
signature cards.
In 2002, the Office of Contracting and Procurement for the Office of the Chief
Financial Officer issued a request for proposals (RFP) for Controlled Disbursement
10
Account Services. The RFP required bidders to include in their proposals Paragraph
8, “Dispute Resolution,” which provides:
[i]f a dispute arises under or relates to the contract, a claim
by the Contractor shall be made in writing and submitted
to the Contracting Officer for a written decision. A claim
by the District against the Contractor shall be subject to
written decision by the Contracting Officer.[6]
The RFP stated that the Contracting Officer was “the only official authorized to
contractually bind the District” and that the Contract Administrator had “the
responsibility of ensuring that the work conforms to the requirements of the contract.”
The RFP also required that the Procurement Practices Act of 1985 (PPA) (D.C. Code
§ 2-301.01 et seq. (2001)) (PPA) be incorporated by reference into the contract.
6
The RFP defines “claim” as
a written demand or written assertion by one of the
contracting parties seeking, as a matter of right, the
payment of money in a sum certain, the adjustment or
interpretation of contract terms, or other relief arising
under or related to the contract. A claim arising under a
contract, unlike a claim relating to that contract, is a claim
that can be resolved under a contract clause that provides
for the relief sought by the Claimant.
11
After a pre-bid conference attended by representatives from several banks,
Bank of America submitted a Technical Proposal and Cost Proposal for the CDA
contract. The Bank’s Cost Proposal included the required clauses described in the
RFP. The Bank’s Technical Proposal included a Table of Contents that referenced
an Agreements/Documentation section listing the following documents: (1) Terms
and Conditions for Treasury Services; (2) Signature Card & Resolution; (3) Wire
Transfer Form; (4) Automated Investment Service Agreement; (5) Bank of America
Direct Profile; and (6) Electronic Pay Profile. It did not include a copy of the
Treasury Services Terms and Conditions booklet. Following a page entitled
“Agreements/Documentation,” there were several blank forms, including
Authorization and Agreement for Treasury Services, Authorization and Agreement
Certification, Treasury Services Delegation of Authority, Business Signature Card,
and a resolution for unincorporated associations, which, the Bank acknowledges, was
included in error. A representative for the Bank testified that he intended that these
documents become a part of the contract. The parties did not sign a contract at that
time.
On March 31, 2005, the Office of Contract Procurement issued an amendment
to the original 2002 RFP and requested that the banks that had responded previously
12
provide their Best and Final Offers for the CDA. A Bank of America representative,
Mr. Bianchi, testified that he was told to update only the Bank’s portion of the
response; therefore, he updated the price proposal and included the same
Agreements/Documentation section the Bank submitted previously. He also testified
that he provided a copy of the Treasury Service Booklet in a separate packet with the
intention that it would constitute additional terms of the contract. Mr. Bianchi signed
the contract on behalf of the Bank, and on November 13, 2005, Ms. Angela Long
Jiggets-Bazzi, a Contract Specialist, who worked in the Office of the Chief Financial
Office, signed the contract. The 2005 contract includes the following language:
“[t]he intent of this contract is for a contractor to manage the disbursement account
in accordance with the published Request for Proposal.” This contract also contains
a merger clause which reads: “[t]his contract, including specifically incorporated
documents, constitutes the total and entire agreement of the parties. All previous
discussions, writings and agreements are merged herein.”
After execution of the 2005 contract, District employees signed a number of
signature cards and authorizations to remove and add new signatories to the CDA.
On March 6, 2006, after becoming the District’s OFT Treasurer, Mr. Mack signed an
Authorization and Agreement for Treasury Services that states, in part, that the signer
13
has received the Treasury Services Booklet and agrees to adhere to its terms. Mr.
Mack testified, however, that he thought he was simply opening two bank accounts
and that he did not intend to modify the 2005 contract between the Bank and the
District. That same day, the Chief of Staff for the Office of Finance and Treasury,
Ulysses Glen, Jr., signed a form certifying that Mr. Mack’s signature was the “true
signature of a person authorized to execute the form on behalf of the Client.” This
certification form also states that for a governmental entity, its “counsel, or any other
individual as permitted by the entity’s organizational documents” should sign. The
trial court found that Mr. Glen was not a lawyer and that no evidence was introduced
to demonstrate his authority to sign the document on behalf of the District.
On April 17, 2006, Mr. Mack signed a signature card naming himself and two
others as authorized signatories for various accounts with the Bank, including the
CDA. This signature card stated that the signer was accepting the “Authorization”
in the first part of the document that stated “[t]he deposit agreement we give you is
part of your agreement with us regarding use of your account and tells you the current
terms of our deposit accounts.” Mr. Mack also testified that he did not intend to
modify the parties’ contract by signing the signature cards. The District exercised its
option to extend the 2005 contract for one-year periods in October 2006, November
14
2007, and November 2008.
B. The Trial Court’s Ruling
The trial court found that the parties’ 2005 written contract governing dispute
resolution and authority to modify the contract superseded “(1) any dispute resolution
or forum selection clauses the Bank claims was previously agreed upon and (2) and
any provision . . . which would allow other District officials to agree to arbitration in
North Carolina (or elsewhere).”7 Thus, the court could not find, as the Bank urged,
that the 2006 Authorization and Agreement for Treasury Service signed by the
Deputy CFO/Treasurer was validly executed or that any signature cards signed after
the 2005 contract bound the District to the forum selection provision in the 2008
Deposit Agreement. The trial court declined to dismiss the claim asserted under the
False Claims Act, reasoning that the PPA, which is incorporated into the 2005
contract, makes the Superior Court the appropriate forum for claims under that Act.
As an additional legal basis for concluding that the parties had no agreement to
arbitrate in North Carolina, the trial court held that the PPA withheld from District
7
The trial court also found that the claims involved in the litigation fall within
the scope of the arbitration and forum selection provisions set out in the Treasury
Services Booklet and Deposit Agreement upon which the Bank relied.
15
officials the authority to agree to the arbitration and forum selection clauses in the
documents relied upon by the Bank.
III. Preliminary Issues
A. Jurisdiction
The question of this court’s jurisdiction was raised initially in an order to show
cause why the appeal should not be dismissed as having been taken from a non-final
order, which cited Calomiris, supra, 894 A.2d at 408, and Hercules & Co., supra, 592
A.2d at 1069. Subsequently, the court vacated the order to show cause, stating that
“the Supreme court’s decision in Andersen LLP, supra, 129 S. Ct. at 1896 may
[a]ffect the applicability of Calomiris, 894 A.2d at 410,” setting a briefing schedule,
and directing the parties to discuss Andersen in their briefs. Appellant argues that
Calomiris is not applicable to the present case and that Andersen and our case law
support immediate appellate jurisdiction over appeals from denials of motions to
compel arbitration. The District does not contend otherwise. Nevertheless, this court
must be satisfied that it has jurisdiction. Therefore, we consider the jurisdictional
questions raised by the motions panel.
16
The Bank argues that this court has jurisdiction because the appeal is from an
order denying its motion to compel arbitration based on a written agreement that it
contends governs the parties’ contractual relationship. Citing Andersen, supra, 129
S. Ct. at 1896, the Bank contends that such orders have been held to be final and
immediately appealable under 9 U.S.C. § 16 (a)(1)(A) of the Federal Arbitration Act
and D.C. Code § 11-721 (a). In Andersen, the Supreme Court considered “whether
appellate courts have jurisdiction under § 16 (a) [of the FAA] to review denials of
stays by litigants who were not parties to the relevant arbitration agreement, and
whether § 3 can ever mandate a stay in such circumstances.”8 Andersen, 129 S. Ct.
at 1899. The District Court had denied petitioners’ demand for arbitration and
request for a stay, and the Sixth Circuit dismissed their interlocutory appeal for lack
8
Section 16 (a)(1)(A) of the FAA provides that “[a]n appeal may be taken
from . . . an order . . . refusing a stay of any action under Section 3 of this title.” 9
U.S.C. § 16 (a)(1)(A) (2006). Section 3 provides, in pertinent part:
If any suit or proceeding be 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.
9 U.S.C. § 3 (2006).
17
of jurisdiction. Id. at 1900. The Supreme Court reversed, holding that the Sixth
Circuit had jurisdiction to review the denial of the § 3 stay and that a non-party to the
arbitration agreement may invoke § 3 if the relevant state contract law permits him
to enforce it. Id. at 1903. Pertinent to our jurisdictional question, the Supreme Court
stated in Andersen:
Ordinarily, courts of appeals have jurisdiction only over
“final decisions” of district courts. 28 U.S.C. § 1291. The
FAA, however, makes an exception to that finality
requirement, providing that “an appeal may be taken from
. . . an order . . . refusing a stay of any action under section
3 of this title.” 9 U.S.C. § 16 (a)(1)(A). By that
provision’s clear and unambiguous terms, any litigant who
asks for a stay under § 3 is entitled to an immediate appeal
from denial of that motion — regardless of whether the
litigant is in fact eligible for a stay. . . .
. . . Jurisdiction over the appeal, . . . “must be determined
by focusing upon the category of order appealed from,
rather than upon the strength of the grounds for reversing
the order.” Behrens v. Pelletier, 516 U.S. 299, 311, 116 S.
Ct. 834, 133 L.Ed. 2d 773 (1996). The jurisdictional
statute here unambiguously makes the underlying merits
irrelevant for even utter frivolousness of the underlying
request for a § 3 stay cannot turn a denial into something
other than “an order . . . refusing a stay of any action under
section 3. 9 U.S.C. § 16 (a).”
Id. at 1900-01.
18
In the present case, the Bank demanded arbitration of the District’s claims
under the FAA as provided for in written documents that it contends govern the
parties’ relationship. Treating the Bank’s request as a motion to compel arbitration,
the trial court denied the motion after an evidentiary hearing, concluding that the
controlling contract did not provide for arbitration. The trial court concluded, inter
alia, that a subsequent agreement superseded any prior agreement providing for
arbitration and that later agreements were ineffectual because the signatories to them
lacked authority to bind the District. With one exception, it also denied a stay of all
claims, thereby allowing the unstayed claims to proceed in another forum (i.e., before
the Contracting Officer and the Contract Appeals Board.) 9
The Bank argues that, under Andersen, it is entitled to appellate review from
the denial of its motion to compel arbitration and for a stay. Andersen supports the
Bank’s argument. Here, the Bank relied upon a written agreement containing a
provision for arbitration under the FAA, albeit one that the trial court found, after an
evidentiary hearing, had been superseded by subsequent agreements. Whether the
Bank can prevail ultimately on its argument that the agreement containing the
9
The trial court retained jurisdiction of only the fraud claim and stayed the
action as to that claim.
19
arbitration provision controls goes to the merits of the controversy rather than the
appellate court’s jurisdiction to adjudicate it. As the Supreme Court stated in
Andersen, jurisdiction over the appeal is determined by the category of the order
appealed from rather than the strength of the grounds for overturning it. Andersen,
supra, 129 U.S. at 1900. Thus, an appeal from the denial of the Bank’s motion to
compel arbitration and stay the court’s denial of the motion would be immediately
appealable under the FAA. See id. at 1900-01.
Moreover, case precedents from this court also support our jurisdiction to
review the denial of the Bank’s motion to compel arbitration. This court has
exercised jurisdiction of an appeal from an order denying a motion to compel
arbitration, concluding that it is a final order, appealable pursuant to D.C. Code §11-
721 (a)(1).10 See, e.g., 2200 M Street LLC v. . Mackell, 940 A.2d 143, 147 & 147 n.2
(D.C. 2007) (citing D.C. Code § 16-4317 (a)(1)11 and Umana v. Swindler & Berlin,
10
D.C. Code § 11-721 (a)(1) (conferring jurisdiction upon the D.C. Court of
Appeals from “all final orders and judgments of the Superior Court of the District of
Columbia”).
11
D.C. Code § 16-4317 (a)(1) then provided that for purposes of appeal, an
order denying an application to compel or stay arbitration was a final order. This
section was a part of the Uniform Arbitration Act, D.C. Code §§ 16-4301, -4319
(DCUAA) that was repealed effective July 1, 2009. 55 DCR 1847 (Feb. 27, 2008).
(continued...)
20
669 A.2d 717, 723 (D.C. 2005)) (other citation omitted). This court has also held that
it had jurisdiction over the appeal of an interlocutory order denying a motion to
compel arbitration under D.C. Code § 11-721 (a)(2)(A) because the order
“‘frustrate[d] arbitration.’” Mausurovsky, supra note 11, 687 A.2d at 201 n.1
(quoting Brandon v. Hines, 439 A.2d 496, 506-07 (D.C. 1981) and citing Umana,
supra, 669 A.2d at 721 & n.11)). In Brandon, we concluded that an order denying
a motion to confirm an arbitration award and requiring the parties to go to trial is an
appealable interlocutory order dissolving an injunction under D.C. Code § 11-721(a)(2)(A) (1973).12 Brandon, 439 A.2d at 500. In reaching this conclusion, this court
found persuasive the Supreme Court’s opinion in Carson v. Am. Brands, Inc., 450
11
(...continued)
The Revised Uniform Act also provides that an appeal may be taken from “[a]n order
denying or granting a motion to compel arbitration.” D.C. Code § 16-4427 (a)(1)
(2001). This court has not resolved the question of the validity of the apparent
jurisdictional grant by the Council to this court under the DCUAA or the Revised
Uniform Act. See Masurovsky v. Green, 687 A.2d 198, 201, n.1 (D.C. 1996)
(declining to decide the issue because of jurisdiction to review an interlocutory order
under D.C. Code § 11-721 (a)(2)(A)); Umana, supra, 699 A.2d at 722 (holding that
“the DCUAA does not attempt to confer jurisdiction upon this court under the
circumstances of this case,” and therefore, it need not decide whether D.C. Code §
16-4317 is consistent with the Home Rule Act).
12
D.C. Code § 11-721 (a)(2)(A) confers jurisdiction upon the District of
Columbia Court of Appeals from interlocutory orders of the Superior Court “granting,
continuing, modifying, refusing, or dissolving or refusing to dissolve or modify
injunctions.” This section remains unchanged in the 2001 edition of the Code.
21
U.S. 79, 90 (1981), interpreting the federal interlocutory appeals statute that has
language virtually identical to our local statute.13 Brandon, 439 A.2d at 509. This
court observed in Brandon that the trial court’s order, if entered by a federal court,
would have been “an appealable interlocutory order ‘dissolving’ an ‘injunction’ under
28 U.S.C. § 1292 (a)(1).” Id. Thus, we concluded that “denials — but not grants —
of stays of litigation pending arbitration are appealable interlocutory orders, since
only orders that frustrate (in contrast with facilitate) arbitration impose a sufficiently
serious injury to justify an immediate appeal.” Id. at 506-07.14
It was this court’s decision in Calomiris, supra, that prompted the motions
panel to raise the jurisdictional question. In Calomiris, this court dismissed for lack
of jurisdiction an appeal from an order denying summary judgment to one of four
trustees who argued that the trust instrument required that disputes over
administration of the trust be resolved by arbitration. Calomiris, 894 A.2d at 408,
411. Appellant argued that this court had jurisdiction because the order appealed
13
The federal appellate jurisdictional statute referenced was 28 U.S.C. § 1292(a)(1) (1976).
14
Under § 16-4427 of the current Revised Arbitration Act, “[a]n appeal may
be taken from . . . An order denying or granting a motion to compel arbitration”
(italics added).
22
from was either (1) a final appealable order under D.C. Code § 16-4317 (i.e., an order
denying a motion to compel arbitration), or (2) an appealable interlocutory order
under Brandon, supra, 439 A.2d at 507 (i.e., one that frustrates the arbitration
process). Calomiris, 894 A.2d at 408-09. In Calomiris, we rejected the statutory
argument because the arbitration provision at issue was established by Will, and not
by contract as required for applicability of the statute.15 Id. at 409-10. Thus, this
court held in Calomiris that the will that contained the arbitration provision was not
a contract within the meaning of the District’s Uniform Arbitration Act. Id. at 410.
Similarly, the court determined that the interlocutory order rule of Brandon v. Hines
presupposed that the parties agreed by contract to arbitration, and therefore the rule
was inapplicable to the facts presented. Calomiris, 894 A.2d at 410.
The condition precedent found lacking in Calomiris is present in this case.
Here, the Bank does rely upon a written contract containing an arbitration provision.
Although the trial court found that this contract was superseded by another agreement
15
D.C. Code § 16-4317 (a)(1) provided that for purposes of appeal, certain
orders shall be deemed final, including “[a]n order denying an application to compel
arbitration made under section 16-4302.” Proceedings to compel or stay arbitration
under §16-4302 required a showing of an agreement as described in § 16-4301. (See
note 9, supra). Calomiris, supra, 894 A.2d at 409. The court concluded that a Will
establishing a trust is not a written agreement or contract. Id.23
between the parties that does not provide for arbitration, such a merits determination
cannot foreclose appellate review of the trial court’s decision. See Andersen, supra,129 S. Ct. at 1900. Otherwise, the trial court’s determination that the contract with
the arbitration clause was superseded and does not govern the dispute would
effectively foreclose appellate review. Nothing in Calomiris requires such a result.
For all of these reasons, we are satisfied that this court has jurisdiction of this appeal.
See Mackell, supra, 940 A.2d at 147 n.2 (holding that denial of a motion to compel
arbitration is a final appealable order allowing this court to exercise jurisdiction
pursuant to D.C. Code § 11-721); see also Andersen, supra, 129 S. Ct. at 1900-01(holding that the FAA provides for an immediate appeal of an order refusing a stay
under the Act as determined by the category of the order appealed from rather than
the strength of the grounds for reversal).
B. Forum Challenge
The Bank argues that the trial court erred in resolving the District’s objections
to the existence, scope or validity of the parties’ arbitration agreement. It contends
that, under applicable law, these issues are for the arbitrator; therefore, the trial court
erred in denying its motion to compel arbitration. The District responds that its
24
challenges to the arbitration clause itself and to the validity of the post-2005 contracts
based on whether the person lacked authority to bind the District are properly
resolved by the court.16
16
The District also argues that the Bank is judicially estopped from contending
in this court that it was for the arbitrator to decide the validity and scope of the
arbitration agreement because it affirmatively asserted a contrary position in the trial
court. The Bank responds that the judicial estoppel rule does not apply because its
position on appeal is not clearly inconsistent with the one it maintained in the trial
court.
“The doctrine of judicial estoppel precludes a party from taking one position
on an issue in the trial court and the opposite position on appeal.” Fairman v. District
of Columbia, 934 A.2d 438, 443 (D.C. 2007) (citations omitted). It is an equitable
doctrine intended to protect the judicial process from improper use. New Hampshire
v. Maine, 532 U.S. 742, 751-52 (2001) (citations omitted). Factors required for
application of the doctrine include: (1) a clear inconsistency between the party’s
earlier position and later one; (2) success in asserting the prior position thereby
creating the perception that one of the courts was misled; and (3) the realization of
an unfair advantage by one party or the imposition of an unfair detriment to the
opposing party. Id. at 752 (citations omitted).
The record supports the Bank’s claim that the position it took in the trial court
is not clearly inconsistent with the position it asserts on appeal. First, the District
concedes that the Bank maintained in the trial court, as it does on appeal, that a
challenge to the validity of the contract as a whole was for the arbitrator. Second, the
record shows that the Bank argued that the arbitrator, not the court, had the authority
to determine whether the District’s claims are arbitrable. It contended that all the
District’s claims are subject to arbitration and therefore, the trial court should dismiss
them or stay the action and direct the parties to proceed to arbitration. Finally, as the
Bank points out, it was not successful in advancing these positions in the trial court.
For these reasons, we agree that the judicial estoppel rule is not applicable here.
25
We start with the basic principle that “arbitration is simply a matter of contract
between the parties; it is a way to resolve those disputes — but only those disputes
— that the parties have agreed to submit to arbitration.” First Options of Chicago,
Inc. v. Kaplan, 514 U.S. 938, 943 (1995); accord, Sandvik AB v. Advent Int’l. Corp.,
220 F.3d 99, 105 (3d Cir. 2000) (citation omitted) (noting that a party cannot be
required to submit to arbitration when he has not agreed to do so because arbitration
is a matter of contract). Generally, in deciding whether the parties agreed to
arbitration, the courts apply ordinary state-law contract principles. First Options, 514
U.S. at 944 (citations omitted). This general rule is subject to qualification when
deciding whether the parties have agreed to have the arbitrator decide the question
of arbitrability. Id. With respect to this issue, the Supreme Court has admonished
that “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless
there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” Id. (quoting AT & T
Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986)).
Challenges to arbitration agreements may be directed to the validity of the
arbitration clause itself or to the contract as a whole. Buckeye Check Cashing v.
Cardegna, 546 U.S. 440, 444 (2006). Guided by § 4 of the FAA, the Supreme Court
has held that a challenge to the making of the arbitration agreement itself is properly
26
resolved by court, while a challenge to the validity of the contract as a whole is for
the arbitrator.17 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402
(1967) (holding that it is for the federal court to adjudicate a claim of fraud in the
inducement of the arbitration clause itself, but not claims of fraud in the inducement
of the contract as a whole); Keeton v. Wells Fargo Corp., 987 A.2d 1118, 1122 (D.C.
2010) (holding that a claim that the arbitration clause is unconscionable disputes its
validity and is for the court, not the arbitrator, to decide). More recently, in Buckeye,
the Supreme Court summarized these principles, as extracted from its precedents, that
are pertinent to the issue presented here.
First, as a matter of substantive federal arbitration law, an
arbitration provision is severable from the remainder of the
contract. Second, unless the challenge is to the arbitration
clause itself, the issue of the contract’s validity is
17
Section 4 of the FAA provides in pertinent part:
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 proceed in a
manner provided for in such agreement . . . . [U]pon being
satisfied that the making of the agreement for arbitration or
the failure to comply therewith is not in issue, the court
shall make an order directing the parties to proceed to
arbitration in accordance with the terms of the
agreement . . . .
27
considered by the arbitrator in the first instance. Third, this
arbitration law applies in state as well as federal courts.
Buckeye, 546 U.S. at 445-46 (citing Prima Paint, 388 U.S. at 403 and 404 and
Southland Corp. v. Keating, 465 U.S. 1 (1984))18 (emphasis added). With these
principles in mind, we review the parties’ respective arguments.
The Bank asserts that the arbitration clause in the Treasury Booklet that
incorporates by reference the AAA Commercial Arbitration Rules requires the parties
to submit the arbitrability question itself to arbitration. Specifically, the Bank cites
Rule R-7 that provides:
(a) The arbitrator shall have the power to rule on his or her
own jurisdiction, including any objections with respect to
the existence, scope or validity of the arbitration
agreement.
(b) The arbitrator shall have the power to determine the
18
In Southland, supra, the Supreme Court held that the FAA created a body
of federal substantive law applicable in state and federal courts, and it rejected the
notion that, even for state law claims in state court, state-law could bar enforcement
of § 2 of the FAA. 465 U.S. at 10-14. Section 2 provides that a written provision in
a contract to settle or submit to arbitration a controversy arising out of it “shall be
valid, irrevocable, and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” 9 U.S.C. § 2.
28
existence or validity of a contract of which an arbitration
clause forms a part. Such arbitration clause shall be treated
as an agreement independent of the other terms of the
contract. A decision by the arbitrator that the contract is
null and void shall not for that reason alone render invalid
the arbitration clause.
Commercial Arbitration Rule R-7. The Bank argues that incorporation of these rules
into the contract show “clearly and unmistakably” that the parties intended for the
arbitrator to decide the issue of arbitrability. See First Options, supra, 514 U.S. at
944 (requiring that the parties’ intention for the arbitrator to decide arbitrability be
shown “clearly and unmistakably”). In support of its position, the Bank relies
primarily upon the Supreme Court’s decision in Rent-A-Center, West, Inc. v. Jackson,
130 S. Ct. 2772 (2010). This case does not support the Bank’s position that the issue
of arbitrability is for the arbitrator.
The issue in Rent-A-Center was whether under the FAA, a district court may
decide a challenge to a contract as unconscionable where the agreement expressly
delegated that authority to the arbitrator. Rent-A-Center, supra, 130 S. Ct. at 2775.
Respondent Jackson had sued his former employer, Rent-A-Center, for
discrimination, but as a condition of employment, he had signed an agreement that
precluded him from pursuing his claims in court. Id. at 2775. The agreement gave
29
the arbitrator the exclusive authority to resolve any dispute concerning the
enforceability of the agreement.19 Id. The District Court granted Rent-A Center’s
motion to compel arbitration, but a divided panel of the Ninth Circuit reversed in part,
holding that “the threshold question of unconscionability is for the court.” Id.(quoting Jackson v. Rent-A-Center West, Inc., 581 F.3d 912, 917 (9th Cir. 2009)).
The Supreme Court reversed, holding that, absent a specific challenge to the
arbitration provision itself, the court must treat this delegation provision as valid
under § 2 of the FAA and leave the challenge to the validity of the agreement as a
whole to the arbitrator.20 Id. at 2779. Thus, Rent-A-Center suggests a different
outcome had petitioner preserved a specific challenge to the provision delegating
arbitrability to the arbitrator. See id. at 2779-80; see also Prima Paint, supra, 388
U.S. at 403-04; Keeton, supra, 987 A.2d at 1122.
Unlike petitioner in Rent-A-Center, the District directs one of its challenges to
19
The agreement provided that “[t]he Arbitrator, and not any federal, state, or
local court or agency, shall have exclusive authority to resolve any dispute relating
to the interpretation, applicability, enforceability or formation of this Agreement
including, but not limited to any claim that all of any part of the Agreement is void
or voidable” Rent-A-Center, supra, 130 S. Ct. at 2775.
20
Petitioner challenged specifically the delegation provision for the first time
in the Supreme Court, and therefore, the Court would not consider it. Rent-A-Center,
supra, 130 S. Ct. at 2781.
30
the validity of the arbitration clause itself. The District argues that it never entered
an agreement to arbitrate any contract-related dispute because no authorized agent for
the District had authority to sign such an agreement. Therefore, the District’s
reliance upon Rent-A-Center is well-placed. In Rent-A-Center, supra, the Supreme
Court stated that where a party challenges the agreement to arbitrate at issue under
§ 2 of the FAA, then the court must decide the issue. Id. at 2778. Many appellate
courts, including this court, have held that it is for the court, rather than an arbitrator,
to decide the validity of the arbitration clause. See Keeton, supra, 987 A.2d at 1122
(citing Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 39 (D.C. 1989);
Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1263-64 (9th Cir. 2006) (en banc); and
Burden v. Check Into Cash of Ky. LLC, 267 F.3d 483, 491 (6th Cir. 2001)) (holding
that it was for the court to decide the validity of an arbitration clause itself in a form
contract.). Likewise, in the present case, it was for the court to determine whether the
District, through authorized agents, ever agreed to be bound by the arbitration
provision. Unless the District agreed to arbitration, it cannot be forced to have its
dispute, including questions of arbitrability, heard in a private forum. Therefore, the
trial court properly considered in the first instance the District’s challenge to the
arbitration provision under the circumstances presented here.
31
The Bank also argues that, insofar as the District’s position is that the
agreement containing the arbitration provision is superseded by subsequent
agreements, its challenge is to the contract as a whole, and therefore, must be resolved
by the arbitrator. It contends that to the extent that the trial court relied upon the
merger clause in the 2005 contract to invalidate the 2000 Corporate Resolution
authorizing various District employees to act on its behalf, “it impermissibly operates
to invalidate the underlying Treasury Booklet and Deposit Agreement as a whole and,
therefore, the issue of contract validity should have been submitted to arbitration.”
The District responds that because the validity of the post-2005 contracts that the
Bank alleges the District entered turns on whether the person who signed lacked
authority to bind the District, resolution by the court is appropriate.
For this argument, the Bank relies upon cases holding that challenges to the
validity of the contract as a whole are for the arbitrator to decide. These include:
Buckeye, supra, 546 U.S. at 449 (reaffirming that in both federal and state courts, “a
challenge to the validity of the contract as a whole, and not specifically to the
arbitration clause, must go to the arbitrator.”); Rent-A-Center, supra, 130 S. Ct. at
2779 (requiring for court intervention that the challenge be directed to the agreement
to arbitrate itself and leaving the challenge to the agreement as a whole to the
32
arbitrator); Prima Paint Corp., supra, 388 U.S. at 403-04 (challenges to the
arbitration agreement itself go to the court, while challenges to the entire contract of
which arbitration is a part are for the arbitrator); see also Menna v. Plymouth Rock
Assurance Corp., 987 A.2d 458, 465 n.30 (D.C. 2010) (noting that the validity of the
contract with an arbitration clause is for the arbitrator unless the challenge is directed
specifically to the validity of the arbitration clause itself under the District’s Revised
Uniform Arbitration Act).21 The Bank contends that resisting arbitration on the
ground that the agreement in which the arbitration provision is found is superseded
by later agreements is tantamount to contesting the contract as whole, and thus, the
principle from the cases it cites applies to require consideration by the arbitrator.
The District acknowledges the general principles extracted from these cases.
However, it contends that where the issue turns on whether the person who signed the
contract lacked authority to commit the principal, judicial review is appropriate, a
point referenced in Buckeye, supra, which the District cites. In Buckeye, the Supreme
Court considered whether a court or an arbitrator should decide the claim that the
contract containing an arbitration provision was void because it violated state lending
and consumer-protection laws. Buckeye, 546 U.S. at 442. Reversing the Florida
21
D.C. Code §§ 16-4401 to -4432 (Supp. 2009).
33
Supreme Court, the Court held that this challenge to the validity of the contract as a
whole was for the arbitrator. Id. at 446. While reaffirming this general principle and
finding it to be applicable in Buckeye, the Supreme Court also stated that
[o]ur opinion . . . does not speak to the issue decided in the
cases . . . which hold that it is for the courts to decide
whether the alleged obligor ever signed the contract, . . .
[or] whether the signor lacked authority to commit the
alleged principal, Sandvik AB v. Advent Int’l Corp., 220
F.3d 99 (C.A. 3 2000);[22] Sphere Drake Ins. Ltd. v. All Am.
Ins. Co., 256 F.3d 587 (C.A. 7 2001))[23] . . . .
Buckeye, 546 U.S. at 444 n.1. This is the essence of the District’s challenge here. It
contends that it never agreed to arbitration because its 2005 contract did not provide
22
In Sandvik, the Third Circuit affirmed the District Court’s denial of a motion
to compel arbitration where the other party claimed that the agent who signed the
agreement lacked authority to sign it and so notified Sandvik. Sandvik, supra, 220
F.3d at 101. The court held that when the very existence of the agreement was
disputed, the district court properly refused to order arbitration until it resolved the
threshold question of whether the arbitration agreement exists. Id. at 111.
23
In Sphere Drake, the Seventh Circuit held that whether a broker had
authority to bind Sphere Drake on reinsurance contracts containing an arbitration
provision was appropriate for resolution by the court. Sphere Drake, supra, 256 F.3d
at 592. The court distinguished the Supreme Court’s decision in Prima Paint in
which the Supreme Court held that it was for the arbitrator to resolve a claim of fraud
in the inducement of the contract. Id. at 590. It noted that in Prima Paint, the parties
actually reached an agreement, while in Sphere Drake, whether there ever was an
agreement was the issue, and arbitration is contractual. Id. at 590-91.
34
for it and none of its employees were authorized to bind the District to arbitration.
Thus, we conclude that the trial court was the proper forum in which to determine
whether the District, through its duly authorized agent, ever agreed to arbitration.
IV. Merits Analysis
A. Standard of Review and Generally Applicable Legal Principles
The court reviews de novo an order denying a motion to compel arbitration.
Fleetwood Enter. Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (citing Webb
v. Investacorp, Inc., 89 F.3d 252, 257 (5th Cir. 1996)); see also Mausurovsky, supra
note 11, 687 A.2d at 202 (citation omitted) (reviewing denial of a motion to compel
arbitration under the de novo standard). When the trial court sits as the trier of fact,
we review its factual findings under the “clearly erroneous” standard. Psaromatis v.
English Holdings, I, L.L.C., 944 A.2d 472, 481 (D.C. 2008) (citations omitted). We
accord the trial court’s factual findings considerable deference, and we will not
reverse them unless plainly wrong or without evidentiary support. Id. (citing D.C.
Code § 17-305 (a) (2001)) (providing that for non-jury cases, “the judgment may not
be set aside except for errors of law unless it appears that the judgment is plainly
35
wrong or without evidence to support it.”). Thus, when the facts lend themselves to
more than one interpretation, this court defers to the trial court’s judgment. Davis v.
United States, 564 A.2d 31, 35 (D.C. 1989) (en banc) (citations omitted). This court
reviews the trial court’s legal conclusions de novo. Chibs v. Fisher, 960 A.2d 588,
589 (D.C. 2008) (citing D.C. Code § 17-305 (2001)).
In reviewing a decision to compel arbitration under the Federal Arbitration Act,
we consider first whether the parties had an agreement to arbitrate the dispute.
Fleetwood Enter., supra, 280 F.3d at 1073 (citing Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 62 (1985)) (citation omitted). We make this
determination based on ordinary state-law contract principles. Id. (citing First
Options of Chicago, supra). The FAA does not require parties to arbitrate a dispute
unless they have agreed to do so. Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland
Stanford Junior Univ., 489 U.S. 468, 478 (1989). If it is determined that the parties
had a valid agreement to arbitrate, then we consider next whether the parties’ dispute
falls within the scope of their agreement. Fleetwood Enter., 280 F.3d at 1073 (citing
Webb v. Investacorp, 89 F.3d 252, 258 (5th Cir. 1996)).
The Bank argues that, in performing our de novo review, we must consider the
36
national policy favoring arbitration. However, as the District points out, “th[e]
federal policy favoring arbitration does not apply to the determination of whether
there is a valid agreement to arbitrate between the parties; instead ‘[o]rdinary contract
principles determine who is bound.’” Fleetwood Enter., supra, 280 F.3d at 1073(quoting Daisy Mfg. Co., Inc. v. NCR Corp., 29 F.3d 389, 392 (8th Cir. 1994)) (other
citation omitted); see also Granite Rock Co. v. Int’l Bd. of Teamsters, 130 S. Ct.
2847, 2859-60 (2010) (holding the presumption in favor of arbitration applicable only
“where it reflects, and derives its legitimacy from, a judicial conclusion that
arbitration of a particular dispute is what the parties intended because their express
agreement to arbitrate . . . [is] best construed to encompass the dispute.”); accord,
Masurovsky, supra note 11, 687 A.2d at 205. In Masurovsky, this court rejected an
argument similar to the Bank’s argument here, concluding that the “initial
determination whether a ‘valid arbitration agreement’ exists must be determined apart
from the presumption [in favor of arbitration.]” Id. In reaching this conclusion, we
relied upon the Supreme Court’s reiteration of the principle that in deciding whether
parties have agreed to arbitrate, courts should generally apply state law contract
principles and its omission of any suggestion that these principles should be
superseded by the federal presumption. Id. (citing First Options of Chicago, supra,514 U.S. at 938). Consistent with these established principles, we conclude here that
the presumption in favor of arbitration attaches only after the court finds initially that
37
a valid agreement to arbitrate exists. Id. With these principles in mind, we turn to
consideration of whether the parties agreed to arbitrate the dispute.
B. Contract Issues
The Bank argues that it had a contractual agreement with the District to
arbitrate claims in North Carolina. It contends that officials in the Office of the Chief
Financial Officer (OCFO) agreed to the terms set forth in its Treasury Services
Booklet which included a provision for arbitrating disputes related to the Controlled
Disbursement Account. On appeal, the District argues, as it did in the trial court, that
there was no agreement to arbitrate contract or fraud claims because OCFO
employees lacked actual authority to enter such agreements by reason of provisions
in the PPA. The trial court agreed with the District’s position, ruling that at the times
relevant to the controversy, OCFO officials lacked the authority under the PPA to
agree to arbitration in North Carolina. Further, the trial court concluded that the 2005
contract incorporating the PPA evidenced the parties’ intent to adhere to the PPA in
its dealings with the Bank. The court also found that the 2005 contract provisions
governing dispute resolution and authority to modify the contract superseded any
dispute resolution or forum selection clauses previously agreed upon by the parties.
The Bank challenges each of these rulings.
38
1. Scope of Authority of OCFO Employees
Contrary to the trial court’s ruling and the District’s position, the Bank argues
that the OCFO was authorized to agree to arbitrate the District’s claims. The District
responds that its employees, including those in the OCFO, who were bound by the
PPA, lacked authority to agree to arbitrate contract claims and claims involving
fraud.24
The District relies for its argument principally upon the PPA statute and this
court’s decision in District of Columbia v. Greene, 806 A.2d 216 (D.C. 2002), in
which this court addressed a similar issue. In Greene, Verizon South claimed that it
had an agreement with the District to submit contract disputes to arbitration, while
the District claimed that it did not because it could not agree to arbitration under the
PPA. Greene, 806 A.2d at 218. In determining whether to enjoin arbitration until the
matter was resolved by the Contract Appeals Board (CAB), this court construed
applicable provisions of the PPA and determined that the District was likely to prevail
on the merits of its argument that its employees could not agree to arbitration under
that PPA. Id. 220-22. In reaching this conclusion, this court observed that the PPA
24
For purposes of this appeal, the District does not contend that its contracting
officers lack authority to agree to arbitration as a general proposition.
39
plainly established the CAB as the exclusive hearing tribunal for determining the
contract claims at issue in the case. Id. at 220. The court found persuasive the
following provisions of the PPA, which are relevant to the issues we address here:
D.C. Code § 2-308.03 (a)(1) states that . . . “[a]ll claims by
the District government against a contractor arising under
or relating to a contract shall be decided by the contracting
officer . . . .” In like fashion § 2-308.05 (a) provides that
“[a]ll claims by a contractor against the District
government arising under or relating to a contract shall be
. . . submitted to the contracting officer for a decision.” In
§ 2-309.03(a), the statute goes on to declare that “[t]he
[Contract Appeals] Board shall be the exclusive hearing
tribunal for, and shall have jurisdiction to review and
determine de novo: . . . (2) Any appeal by a contractor from
a final decision by the contracting officer on a claim by a
contractor, when such claim arises under or relates to a
contract; and (3) Any claim by the District against a
contractor, when such claim arises under or relates to a
contract.”
Greene, 806 A.2d at 220 (citing the quoted sections).
Interpreting these and other provisions of the PPA, this court concluded in
Greene that the PPA, in effect, withheld from the District’s contracting officers the
power to agree to arbitration by specifying the manner in which the District may
40
procure property, supplies and services 25 and designating the CAB as the sole hearing
tribunal for resolution of contract disputes. Greene, 806 A.2d at 222. Also pertinent
to the court’s decision, under local contract law, a contracting officer cannot obligate
the District to terms that exceed his or her actual authority. Id. at 222 (citing Coffin
v. District of Columbia, 320 A.2d 301, 303 (D.C. 1974)). Thus, here, as in Greene,
District employees or entities subject to the PPA would have had no authority to
agree to a dispute resolution procedure different than the one specified by law. The
general rule is that persons contracting with a municipal corporation must take notice
of the nature and extent of its agent’s authority. Id. at 222 and 222 n.7 (citing
Chamberlain v. Barry, 606 A.2d 156, 159 (D.C. 1992), and Coffin, 320 A.2d at 303(quoting 10 McQuillan Municipal Corporations § 29.04 at 219-22 (3d ed. 1966)).
Thus, the Bank was bound to note any statutory limitation on the authority of those
in the District with whom it contracted.
To counter these authorities, the Bank argues that there is no statutory
provision specifically precluding the OCFO from agreeing to arbitrate. This
argument was made and rejected in Greene. As this court explained in that case, this
“argument is difficult, if not impossible, to square with the language of § 2-309.03
25
See D.C. Code § 2-301.01.
41
(a) making the CAB ‘the exclusive hearing tribunal’ for claims of the kind
enumerated.” Greene, 806 A.2d at 220 (citation omitted). Thus, contracting officers
who were bound by the PPA did not have authority to agree to resolve contract
disputes in another forum in another state.
We find unpersuasive the Bank’s assertion that Greene is not supportive of the
District’s position because it involved consideration of injunctive relief rather than
a decision on the merits of the claim. In determining whether to grant this
extraordinary remedy, the court had to decide whether there was a substantial
likelihood that the moving party would prevail on the merits. See Greene, supra, 806
A.2d at 219-20 (citing District of Columbia v. Grp. Ins. Admin., 633 A.2d 2, 21 (D.C.
1983) (quoting Wieck v. Sterenbuch, 350 A.2d 384, 387 (D.C. 1976)). This required
the court to address squarely the same question raised here, i.e., whether the PPA
withheld authority from its contracting officers to agree to arbitration. In doing so, the
court had to construe the PPA statute before deciding whether the District was likely
to prevail on its claim. Thus, we agree that Greene is good authority for the District’s
position here. Moreover, we are persuaded by its statutory analysis of the issue.
Next, the Bank argues that the OCFO is exempt from PPA provisions regarding
contracting authority. It contends that D.C. Code § 2-301.04 (a) and subsequent
42
Congressional enactments confirm the independent authority of the OCFO to contract
and therefore to agree to arbitration.26 The District responds with authorities
supporting its claim that the OCFO has always been bound by the PPA.
The section of the Code upon which the Bank relies for its exemption argument
reads in pertinent part as follows:
. . . [the PPA] shall apply to all departments, agencies,
instrumentalities, and employees of the District
government . excluding . . ., and (to the extent described in
§ 1-204.26) the Office of the Chief Financial Officer of the
District of Columbia . . . .
D.C. Code § 2-301.04 (a) (2001) (“2005 exemption”).27 However, as the District
points out, § 2-301.04 (a)’s exemption is subject to the limitation forth in § 1-204.26.
Although § 1-204.26 provided for the CFO to carry out procurement of goods and
services for the OCFO through an office independent of the Chief Procurement
26
The Congressional actions referenced by the Bank are: District of Columbia
Appropriations Act, 2006, 109 Pub. L. No. 115, § 132, 119 Stat. 2508, 2522 (2005);
Continuing Appropriation Resolution 2007, Pub. L. No. 109-289, § 127(b), 120 Stat.
1311, 1316 (2006); H.J. Res. 100, 109 Pub. L. No. 369, 120 Stat. 2642 (2006); H.J.
Res. 102, 109 Pub. L. No. 383, 120 Stat. 2678 (2006).
27
This provision was repealed effective April 8, 2011. D.C. Law 18-371,
§ 1201(a).
43
Officer (CPO), it made the OCFO subject to the same procurement provisions
applicable to the CPO. See D.C. Code § 1-204.26.28 Thus, while § 2-301.04 (a)
provided the OCFO with independent contracting authority, it made it subject to the
PPA’s procurement provisions to the same extent as the CPO. The Bank argues that
such an interpretation would render the exclusion in § 2-301.04 (a) meaningless,
contrary to the rule of statutory construction requiring that effect be given to each
statutory provision, absent express legislative intent to the contrary. It contends that
to give effect to both statutes, §1-204.26 must be interpreted to authorize the OCFO
to procure goods and services independent from the PPA except when its
procurement is carried out by the OCFO’s Chief Procurement Officer.29
28
D.C. Code § 1-204.26 provides in pertinent part as follows:
The Chief Financial Officer shall carry out
procurement of goods and services for the Office
of the Chief Financial Officer through a
procurement office or division which shall operate
independently of, and shall not be governed by, the
Office of Contracting and Procurement . . . or any
successor office, except the provisions applicable
under such unit to procurement carried out by the
Chief Procurement Officer established by § 2-
301.05 or any successor office shall apply with
respect to the procurement carried out by the
Chief Financial Officer’s procurement office or
division. (Emphasis added.)
29
The Bank relies upon the September 25, 2000 and March 6, 2006 TSB
Authorizations because they were not carried out by OCFO’s Chief Procurement
(continued...)
44
We have no quarrel with the Bank’s recitation of the rule of statutory
construction;30 however, its application of the rule here is flawed. Both § 2-301.04
(a) and § 1-204.26, referenced therein, can be given effect without one defeating the
purpose of the other. While § 2-301.04 (a) provided for independent contracting
authority for the OCFO, § 1-204.26 simply required that in exercising that authority,
the OCFO adhere to the same statutory procurement requirements by which the
District’s CPO was bound. This interpretation, persuasively urged by the District, is
consistent with the plain meaning of the statutes. See Boyle v. Giral, 820 A.2d 561,
568 (D.C. 2003) (setting forth the principle that we look first to the plain meaning of
a statute in interpreting it, read in light of the statute as a whole) (citation omitted).
There is nothing in the statute that suggests, as the Bank contends, that District
officials in the OCFO’s Office of Finance and Treasury, as opposed to those in the
Procurement Office, were at liberty to ignore the requirements of the PPA.31 In any
29
(...continued)
Officer.
30
See Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir. 1994) (quoting Morton
v. Mancari, 417 U.S. 535, 551 (1974) (“When two statutes are capable of co-
existence, it is the duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.”)); see also Abadie v. District
of Columbia, 843 A.2d 738, 742 (D.C. 2004) (stating that “[i]f related statutes
conflict, we must reconcile them”). (Citation omitted).
31
The 2000 and 2006 TSB Authorizations were executed by District Officials
in the OCFO’s Office of Finance and Treasury, acting under a 2000 corporate
(continued...)
45
event, the parties’ 2005 contract, hereinafter discussed, incorporated the PPA, and
thus, as the trial court determined, “evidence[d] the intent of the OCFO to adhere to
the PPA with respect to its dealings with the [Bank].”
This court’s decision in Abadie, supra, 843 A.2d at 738, relied upon by the
District, supports its argument that the OCFO was subject to the PPA. In Abadie, this
court concluded that, with limited, specified exceptions, the PPA applied to the OCFO
during “control years.”32 Id. at 745-46. The court noted in Abadie that § 2-301.04 (a),
which sets forth governmental entities exempt from the PPA, did not include the
OCFO, although it did list the Control Board for exemption. Id. at 743. Consistent
with the legislative history and rules of statutory interpretation, this court held in
Abadie that the OCFO’s exemption for control years applied only to the types of
31
(...continued)
resolution. The Bank contends that these particular officials were not bound by the
PPA.
32
The Procurement Reform Amendment Act of 1996 (effective April 1997)
(Reform Act) exempted the OCFO from provisions of the PPA during control years,
and required the OCFO to “adopt . . . the procurement rules and regulations adopted
by the District of Columbia Financial Responsibility and Management Assistance
Authority [Control Board].” D.C. Code § 2-301.04 (c) (2001). A control year is “any
fiscal year for which a financial plan and budget approved by the [Control Board] . . .
is in effect, and includes Fiscal Year 1996.” D.C. Code § 47-393 (4) (2005). In
Abadie, supra, this court considered and interpreted several statutory provisions
related to its decision including those related to the OCFO and the PPA. See Abadie,
843 A.2d at 741, 742-44.
46
contracts listed in the sentence that immediately preceded it, i.e., those for professional
services of “accountants, lawyers, and other experts.” Id. at 745.
The Bank argues that even if Abadie could be construed as subjecting the OCFO
to the PPA, its holding was rejected by subsequent Congressional enactments,
specifically, the District’s 2006 Appropriations Act, which became law on November
30, 2005 (effective retroactively from April 1997), three extensions of the 2005
exemption, and permanent codification of the exemption in D.C. Code § 2-301.04.
The District responds that there is no evidence that Congress considered or intended
to overrule Abadie and that the 2006 Appropriations Act did not exempt the OCFO
from the dispute resolution provisions of the PPA or render ineffective the terms of
the parties’ 2005 contract incorporating the PPA that was executed before enactment
of the statute.
The 2006 Appropriations Act provided that
[t]he entire process used by the Chief Financial Officer to
acquire any and all kinds of goods, works, and services by
any contractual means . . . shall be exempt from all of the
provisions of the District of Columbia’s Procurement
Practices Act: Provided, That provisions made by this
subsection shall take effect as if enacted in D.C. Law 11-
259 [(the 1996 Procurement Reform Amendment Act)] and
47
shall remain in effect until September 30, 2006.
District of Columbia Appropriations Act, 2006, Pub. L. No. 109-115, § 132, 119 Stat.
2396, 2522 (2005).33 While the 2006 Act exempted the OCFO from the PPA with
respect to the acquisition of goods and services by contract, it did not address the
administration of any contract entered or the resolution of disputes arising therefrom
covered by sections of the PPA. To that extent, it left intact other provisions of the
PPA governing contract administration. Neither the plain language of these
enactments nor the legislative history cited by the Bank supports its argument that
Congress intended to overrule Abadie.34 When overruling court decisions, Congress
has been explicit in the past.35
33
This exemption was extended three times through February 15, 2007. See
Continuing Appropriations Resolution 2007, Pub. L. No. 109-289, § 127 (b), 120
Stat. 1311, 1316 (2006) (extension through 11/17/06); H.J. Res. 100, 109 Pub. L. No.
369, 120 Stat 2642, 2642 (2006) (extension through 12/8/06); H.J. Res. 102, 109 Pub.
L. No. 383, 120 Stat. 2678, 2678 (2006) (extension through 2/15/07).
34
Reference is made to H.R. Conf. Rep. 109-307 (2005), 205 WL 3131557:
S. Rep. 109-109 (2005) (2005), reprinted in 2006 U.S.C.C.A.N. 1260.
35
See, e.g., Molovinsky v. Fair Emp’t Council of Greater Washington, Inc.,
683 A.2d 142, 148 n.11 (D.C. 1996) (Noting that “[t]he legislative history makes
clear that Congress specifically intended to overrule Luck [v. United States, 121 U.S.
App. D.C. 151, 348 F.2d 763 (1965)], rejecting the Luck rule as ‘absolutely
unworkable.’ H.R. Rep. No. 91-907, [91t Cong., 2d Sess. 62, 63 (1970)]”; Brown v.
United States, 518 A.2d 446, 447- 48 n.3 (D.C. 1986) (referencing legislative history
reflecting Congressional intent to overrule definition of a term in a particular case as
(continued...)
48
The District argues that the process used to acquire the Bank’s services had
concluded before this law was enacted. Although this provision was made retroactive
to 1997, the District argues that the 2006 Act did not invalidate the parties’ 2005
agreement to be bound by the PPA, as the Bank suggests. As it points out, the “laws
in effect at the time of the making of a contract form a part of the contract ‘as fully as
if they had been expressly referred to or incorporated in its terms.’” Double H. Hous.
Corp. v. Big Wash, Inc., 799 A.2d 1195, 1199 (D.C. 2002) (quoting Farmers &
Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 262 U.S. 649, 660
(1923)) (other citation omitted); accord, Akassy v. William Penn Apts. Ltd. P’ship, 891
A.2d 291, 300 (D.C. 2006). In this case, the parties specifically incorporated into the
2005 contract the PPA, the law in effect at the time.
The District contends that the PPA is even clearer in precluding OCFO
employees from agreeing to arbitrate claims involving fraud. While the PPA
authorized contracting officers to resolve contract disputes (see D.C. Code § 2-308.03(a)(1) (2006 Repl.)), it did “not authorize the contracting officer to settle, compromise,
pay or otherwise adjust any claim involving fraud.” D.C. Code § 2-308.03 (a)(4)
35
(...continued)
reflected in H.R. Rep. No. 907, 91st Cong. 2d Sess. 62 (1970)).
49
(2006 Repl.)).36 The District argues that this express prohibition precluded a
contracting officer for the District from agreeing to arbitration of claims involving
fraud.
A preliminary question raised by the District’s position is whether an agreement
to arbitrate a dispute falls within the parameters of these PPA prohibitions. The
answer depends to some extent upon the meaning of the term “arbitration.” This court
has observed previously that The Federal Arbitration Act “is silent on the definition
of ‘arbitration.’”37 See Washington Automotive v. 1828 L St. Assocs., 906 A.2d 869,
875 (D.C. 2006); see also Harrison v. Nissan Motor Corp. In U.S.A., 111 F.3d 343,
350 (3d Cir. 1997) (noting that the FAA does not define “arbitration,” and that “courts
and commentators have struggled to do so.”). In determining whether a certain
appraisal process constituted an arbitration under the FAA, the Tenth Circuit noted
that “[c]entral to any conception of classic arbitration is that the disputants empowered
a third party to render a decision settling their dispute.” Salt Lake Tribune v. Mgmt.
Planning, 390 F.3d 684, 689 (2004) (citation omitted). Also essential to rendering the
36
D.C. Code § 308.03 was repealed effective April 8, 2011, D.C. Law 18-371,
§ 1201(a).
37
Similarly, this court noted that the D.C. Arbitration Act did not define the
term “arbitration.” Washington Automotive, supra, 906 A.2d at 875.
50
process an arbitration is that the third party’s decision will settle the dispute. Id. at
690 (citation omitted). In defining arbitration in Harrison, supra, the court stated,
“[a]lthough it defies easy definition, the essence of arbitration . . . is that, when the
parties agree to submit their disputes to it, they have greed to arbitrate these disputes
through to completion.” 111 F.3d at 350. Dictionary definitions include these
described elements, including binding and final settlement or resolution of a dispute
by a designated third party.38 The PPA precludes contracting officers from settling or
adjusting disputes involving fraud. When the government is a party to a contract, its
representative must have actual authority in order to bind the government to it. See
Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003) (setting forth actual
authority as an element of proof required to prove an express or implied-in fact
contract with the government); accord, City of Cincinnati v. United States, 153 F.3d
1375, 1377 (Fed. Cir. 1998). It follows rationally that a government representative
cannot delegate to another actual authority that he or she does not possess. In short,
contracting officers bound by the PPA cannot agree to settle, compromise or otherwise
38
For example, arbitration is defined as “[a] method of dispute resolution
involving one or more neutral third parties who are usually agreed to by the disputing
parties and whose decision is binding.” Black’s Law Dictionary, 112 (8th ed. 2009).
Webster’s Third New International Dictionary defines “arbitration” as “the hearing
and determination of a case between parties in controversy by a person or persons
chosen by the parties or appointed under statutory authority instead of by a judicial
tribunal provided by law.” Webster’s Third New International Dictionary, 110 (3d
ed. 1993).
51
adjust fraud claims, and they cannot delegate to others the authority to do so. Thus,
we agree with the District that the PPA withheld authority from OCFO employees to
agree to arbitrate fraud claims as well as contract claims. “A person making or
seeking to make a contract with a municipal corporation is charged or imputed with
knowledge of the scope of the agency’s authority.” Chamberlain v. Barry, 606 A.2d
156, 159 (1992) (citing Coffin, supra, 320 A.2d at 303).
2. Preemption
The Bank argues that even if the PPA did apply to the OCFO, the FAA
preempts state laws like the PPA. It contends that the FAA prohibits state law from
interfering with the objectives of the FAA, and therefore, the District’s argument that
the PPA withheld authority from District officials to agree to arbitration must fail.
Unquestionably, the FAA “establishes a national policy favoring arbitration when the
parties contract for that mode of dispute resolution.” Preston v. Ferrer, 552 U.S. 346,
349 (2008) (citing Southland Corp. v. Keating, 465 U.S. 1 (1984)) (emphasis added).
The FAA provides for the application of federal substantive law regarding arbitration
in both federal and state courts. Id. (citing Southland, 465 U.S. at 16). Relying upon
Preston, the Bank argues that the PPA’s grant of exclusive jurisdiction of FCA claims
to Superior Court and contract claims to the Contracting Officer and the CAB is
52
superseded by the FAA. The District counters that Preston did not involve a statute
that withheld authority from a government employee to agree to arbitrate, but rather
one that bars enforcement of otherwise enforceable arbitration agreements. The
District argues that the former is permissible, while the latter is not. The District has
the better argument on this point.
In Preston, there was no dispute that the parties had a written agreement
providing for arbitration. The Supreme Court held that “when parties agree to
arbitrate all questions arising under a contract, state laws lodging primary
jurisdiction in another forum, whether judicial or administrative, are superseded by the
FAA.” Id. at 349-50 (emphasis added). Preston, claiming fees allegedly due under
a contract with Ferrer, sought arbitration under an arbitration clause covering “any
dispute . . . relating to the terms of [the contract] or breach, validity, or legality thereof
. . . in accordance with the rules [of the American Arbitration Association].” Id. at
350. Ferrer petitioned the California Labor Commissioner to have the contract
declared void under the California Talent Agencies Act (TAA)39 because Preston had
acted as a talent agent without the requisite license. Id. Although finding a basis for
the exercise of jurisdiction, the Labor Commission’s hearing officer denied Ferrer’s
39
Cal. Lab. Code Ann. § 1700 et seq. (West 2003 and Supp. 2008).
53
motion to stay arbitration for lack of authority to grant such relief. The Los Angeles
Superior Court denied Preston’s motion to compel arbitration, and the California Court
of Appeals affirmed, holding that the TAA vests “exclusive original jurisdiction” over
the dispute in the Labor Commissioner. The California Supreme Court denied review,
and the Supreme Court granted certiorari to determine whether the FAA overrides
state law vesting initial adjudicatory authority in a state administrative agency. The
Supreme Court determined that the TAA conflicts with the FAA’s dispute resolution
mechanism in that (1) it granted exclusive jurisdiction to the Labor Commissioner to
decide an issue that the parties agreed to arbitrate, and (2) it imposed prerequisites to
enforcement of the arbitration agreement not applicable to contracts generally. Id. at
356. Therefore, the Supreme Court held that the FAA superseded state law (the TAA)
and that pursuant to the parties’ contract, their rights must be decided in an arbitral
forum. Id. at 352.
There is an important difference between the circumstances presented in
Preston and those presented here. In this case, the PPA simply imposes statutory
restrictions on the authority of municipal employees to agree to arbitration. It does not
bar enforcement of valid arbitration agreements or impose conditions upon such
agreements not applicable to other contracts. See Greene, supra, 806 A.2d at 221. As
the court stated in Greene in addressing an analogous argument that applies here:
54
“what [the Bank’s] argument does is to mistake the authority of a state to bar
enforcement of otherwise valid arbitration agreements — power denied the state
except insofar as § 2 [of the FAA] permits — for the authority of a government
contracting for goods or services in its own behalf to refuse to agree to arbitrate
disputes.” Id. The FAA does not mandate arbitration; it requires enforcement of
privately negotiated arbitration agreements. Id. at 222. Here, the PPA withheld from
contracting officers the authority to bind the District to arbitration, just as any private
corporation or individual might limit an agent’s contracting authority. Therefore, we
reject the Bank’s preemption argument.
3. Controlling Contractual Agreement
As previously discussed, the trial court ruled that the PPA, which was
incorporated into the 2005 contract, withheld from the CFO and OCFO officials the
authority to agree to arbitration and forum selection for contract and fraud claims at
the time the authorization and agreements for Treasury Services were signed.
Alternatively, the trial court found that the parties’ 2005 contract provisions governing
dispute resolution and contract modification superseded any clauses on the subject that
the Bank claims were agreed upon previously and any provision that would otherwise
allow District officials to agree to arbitration in North Carolina or elsewhere. The
55
court also concluded that after execution of the 2005 contract, the Deputy
CFO/Treasurer lacked authority to bind the District to dispute resolution clauses in the
2008 deposit agreement. The Bank argues that the trial court erred in its rulings
because: (1) it misapplied basic contract integration principles in holding
unenforceable the arbitration provisions in the TSB and the forum selection clauses
in the Deposit Agreement signed before the 2005 contract; and (2) the 2005 contract
cannot supersede documents containing such provisions signed by District officials
after the 2005 contract was entered.40 The Bank contends that the 2005 contract is
partially integrated and that the arbitration clause in the TSB and the forum selection
provisions in the Deposit Agreements operate harmoniously and must be integrated
into the 2005 contract. Alternatively, it argues that subsequently executed agreements
control dispute resolution.
a. Effect of the 2005 Contract on Prior Agreements
40
The documents the Bank references include: (1) previously and
subsequently signed Authorizations incorporating the Treasury Booklet which
contained an arbitration clause; (2) Documents in the “Agreements/Documentation”
section in its responses to the 2002 and 2005 RFPs; and (3) Treasury Booklets that
it contended were sent with its responses to the 2002 and 2005 RFP. However, the
trial court found as fact that the Treasury Booklet was not included in these two
submissions.
56
“When parties to a contract have executed a completely integrated written
agreement, it supersedes all other understandings and agreements with respect to the
subject matter of the agreement between the parties, whether consistent or
inconsistent, and is viewed as the sole expression of the parties’ intent.” Masurovsky,
supra, 687 A.2d at 202 (citing Howard Univ. v. Good Food Servs., Inc., 608 A.2d 116,
126-27 (D.C. 1992)) (other citation omitted). A partially integrated agreement is one
“where the writing represents the agreement of the parties with respect to the matters
stated therein, but there may be additional consistent terms.” Id. (citing Good Food
Servs., 608 A.2d at 126)) (other citation omitted). Whether an agreement is completely
or partially integrated is a preliminary question of fact for the trial court. Id. at 126
(citing Ozerol v. Howard Univ., 545 A.2d 638, 641 (D.C. 1988)). In making its factual
inquiry, the trial court must consider the intent of the parties when they entered the
agreement as derived from “the conduct and language of the parties and the
surrounding circumstances.” Id.In this case, before deciding that the parties’ 2005 contract rendered ineffective
any prior authorizations or agreements for arbitration and forum selection, the trial
court held an evidentiary hearing, made factual findings, and considered the factors
essential to its determination as set forth in our case law. See, e.g., Good Food Servs.,
57
supra, 608 A.2d at 126 (citation omitted). The trial court concluded that the “parties’
written contract containing a merger clause, the conduct of the parties and the
surrounding circumstances, evaluated as a whole, weigh heavily in favor of the 2005
contract’s categorization as a fully integrated document with respect to dispute
resolution and authority to modify.” The court also stated that even if the 2005
contract could be characterized as partially integrated, it would supersede any
inconsistent terms in prior agreements. See id. However, the trial court also found
that the parties did not intend for the 2005 contract to invalidate documents signed by
OCFO and OFT officials to the extent that they allowed the account to remain open
and maintained by authorized individuals.
The trial court’s ultimate conclusion that the 2005 contract is a completely
integrated document with respect to dispute resolution and authority to modify is
supported by the record and applicable law. First, the 2005 contract contains a merger
clause that states, “This contract, including specifically incorporated documents,
constitutes the total and entire agreement between the parties. All previous
discussions, writings, and agreements are merged herein.” The presence of a merger
clause, although not conclusive, is a significant factor indicating that the parties
intended the 2005 contract to be a complete expression of the terms agreed upon.
58
Good Food Servs., supra, 608 A.2d at 127 (II Farnsworth on Contracts § 7.3, at 204-
07 (1990)). Second, specific items or documents intended to be included in the
contract are listed. A listing of extrinsic items that form a part of the contract is a
factor tending to support the conclusion that a contract is completely integrated.
Hercules & Co. v. Shama Rest. Corp., 613 A.2d 916, 928 (D.C. 1992) (holding that
this factor, along with two merger clauses, established “beyond peradventure” that the
contract was completely integrated). The trial court found that the TSB containing an
arbitration clause, aside from not being enumerated as a contract document, was not
included in the Bank’s response to the 2002 RFP or its 2005 best and final offer.41
This factual determination is supported by the evidence and not clearly erroneous;
therefore, we accept it. See Psaromatis v. English Holdings I, L.L.C., 944 A.2d 472,
481 (D.C. 2008) (setting forth clearly erroneous standard for review of the trial court’s
factual findings when sitting as fact finder).
41
The trial court did not credit the testimony of the Bank’s Senior Vice
President Biachi that he mailed the TSB with the 2002 and 2005 responses to the
RFP. See Lazo v. United States, 54 A.3d 1221, 1230 (D.C. 2012) (stating that this
court will not redetermine the trial court’s credibility determinations where it had the
opportunity to observe the witness’ demeanor). Here, the trial court also found that
Mr. Biachi, who signed the contract, did not focus on the merger clause, dispute
resolution clause, arbitration or the requirements of the PPA, nor did he even know
that there was an arbitration provision in the TSB. The trial court also found that at
no time did the parties discuss dispute resolution before the award of the 2005
contract.
59
Third, the trial court considered the circumstances surrounding the making of
the contract before determining that it was fully integrated, specifically as to dispute
resolution and modification authority. See Good Food Servs., supra, 608 A.2d at 126(setting forth surrounding circumstances as one focus of the inquiry into whether the
parties intended an agreement to be completely integrated). Briefly stated, these
circumstances included the OCFO’s “effort[s] to assert control over the District’s
finances, including its bank accounts,” in part, by issuing the 2002 RFP.42 The trial
court found that “[a]n important part of that endeavor was empowering only one
person to contractually bind the District, and except for claims under the False Claims
Act, establishing only one method of resolving disputes — through the Contracting
Officer.” To this end, the RFP provided that only the Contracting Officer is
authorized to make modifications or changes to the terms and conditions of the
contract. The RFP further required that bidders include a dispute resolution provision
stating that “[i]f a dispute arises under or relates to the contract, a claim by the
Contractor shall be made in writing and submitted to the Contracting Officer for a
written decision. A Claim by the District against the Contractor shall be subject to
written decision by the Contracting Officer.” Contract clauses required by the RFP
also included the incorporation by reference of the PPA and applicable regulations
42
The trial court found that there were 1400 bank accounts when Dr. Gandhi
was appointed CFO in June 2000.
60
and the laws of the District of Columbia. Except for fraud claims, the PPA provided
for only one form of dispute resolution for contract claims, i.e., that they be resolved
by the Contracting Officer. The PPA provides that contracting officers are “not
authorize[d] . . . to settle, compromise, pay, or otherwise adjust any claim involving
fraud.” D.C. Code § 2-308.03 (a)(4) (2006 Repl). It also provides that the District
may bring a civil action in Superior Court for fraud claims. D.C. Code § 2-308.14.43The District issued an amendment to the RFP on March 31, 2005, but the terms
and conditions related to dispute resolution, contract modification, and incorporation
of the PPA and other laws of the District of Columbia remained unchanged. Consistent
with the RFP’s requirements, the 2005 contract executed by the parties states in
Article I that “[t]he intent of this contract is for a contractor to manage the
disbursement account in accordance with the published RFP.”44 The trial court found
that “[s]ignificantly, the Treasury Booklet was not included as part of the [Bank’s]
2002 RFP Response and the 2005 [Best and Final Offer] that were incorporated into
the 2005 Contract that Mr. Bianchi [the Bank’s Senior Vice President] signed.” This
43
D.C. Code § 2-308.14 is now codified at D.C. Code § 2-381.02 (a).
44
The contract incorporated the following documents “by order of
precedence:” Articles I through V; Contractor’s Technical Proposal and Cost
Proposal; Contractor’s Best and Final Offer dated April 25, 2005; and the District’s
RFP.
61
factual finding, which is supported by the evidence, is not challenged. Given the
language in the written contract, the conduct of the parties, and the surrounding
circumstances as found by the trial court, we discern no error in its conclusions that
objectively the parties intended the 2005 written contract to govern their relationship
related to the CDA with respect to dispute resolution and authority to modify the
agreement and that any prior inconsistent provisions on these subjects were
superseded by the 2005 contract.45 “Our jurisdiction adheres to an objective law of
contracts, meaning that the written language embodying the terms of an agreement
will govern the rights and liabilities of the parties regardless of the intent of the parties
at the time they entered into the contract[.]” Aziken v. District of Columbia, 70 A.3d
213, 218-19 (D.C. 2013) (internal quotation marks omitted).
The Bank argues that the trial court erred by failing to harmonize the dispute
resolution provisions of the 2005 contract and the TSB’s arbitration clause. It
contends that the TSB and Deposit Agreement operate harmoniously with the 2005
contract, and therefore must be construed together as one contract. In interpreting a
45
See Good Food Servs., supra, 608 A.2d at 126-27 (setting forth basis for
determining the preliminary factual issue of whether the parties intended a writing to
be integrated); see also Ozerol, 545 A.2d at 641 (contrasting completely and partially
integrated agreements and noting that the latter may have consistent, as opposed to
inconsistent, additional terms).
62
contract, we consider the document as whole “so as to give effect, if possible, to all
of the provisions in the contract.” Steele Found. Inc. v. Clark Constr. Grp., 937 A.2d
148, 154 (D.C. 2007) (citing Akassy, supra, 891 A.2d at 303). Contrary to the Bank’s
argument, the dispute resolution mechanism agreed upon in the 2005 contract and the
prior arbitration and forum selection clauses upon which it relies cannot be reconciled
or harmonized.46 As the trial court concluded, the mechanisms for dispute resolution
agreed upon in the 2005 written contract are inconsistent with any prior arbitration and
forum selection provisions calling for arbitration in North Carolina that the Bank
contends were agreed upon prior thereto. The provisions in the 2005 contract,
solicited, negotiated, and agreed upon in writing, provide that: (1) except for fraud
claims, claims related to the parties’ contract will be decided by the Contracting
Officer and Contract Appeals Board; and (2) fraud claims can be pursued in a civil
46
Bank Julius Baer & Co. v. Waxfield Ltd., 424 F.3d 278 (2d Cir.), upon which
the Bank relies, is distinguishable. In that case, the district court determined that
merger and forum selection clauses in a series of subsequently executed Pledge
Agreements superseded a prior agreement to arbitrate disputes. Id. at 280. The
Pledge Agreements had a clause providing that “all rights and remedies provided in
this Agreement are cumulative and not exclusive of any provided under any other
agreement or by law or in equity.” Id. at 282. The circuit court stated that in light of
this clause, it would make little sense to read the merger clause to destroy prior
contract relationships. Id. at 283. Consistent with New York law, the court “read the
merger clause as providing that the Pledge Agreements supersede any previous
agreements only to the extent that they conflict. Id. In the case before this court, we
have no similar non-exclusive remedies provision, and the terms of the dispute
resolution provisions in the written contract and prior documents conflict.
63
action in court by the Attorney General as stated in the PPA, which was incorporated
by reference. These provisions are entirely inconsistent with any prior agreements to
arbitrate claims in North Carolina or elsewhere. Even if the 2005 agreement is
characterized as only partially integrated, prior inconsistent terms with respect to the
matters stated therein were superseded by the 2005 contract, and therefore, they cannot
control. See Masurovsky, supra note 11, 687 A.2d at 202 (citing Good Food, supra,608 A.2d at 126) (other citation omitted). To the extent that provisions for dispute
resolution and forum selection are referenced on bank signature cards and
authorizations pre-dating the parties’ 2005 contract, for the foregoing reasons, we
agree with the trial court that they were superseded by the 2005 contract and cannot
be harmonized with it.
b. Effect of Subsequently Executed Documents on the 2005 Contract
Alternatively, the Bank argues that TSB and Deposit Agreements signed by
OFT officials after the 2005 contract was entered control.47 It contends that for
47
The Bank relies on the 2006 Authorization agreeing to be bound by the TSB,
signed by Deputy Chief Financial Officer, Lasana Mack, pursuant to authority
provided by the 2000 Corporate Resolution, and signature cards signed in 2006. The
TSB provides for arbitration in the United States, and the Deposit Agreements
provide for actions or proceedings involving the account to be maintained in the
(continued...)
64
partially integrated contracts, the most recent writing controls or that the 2005 contract
could be supplemented or modified by documents executed thereafter. The Bank
takes the position that OFT officials retained independent contracting authority under
the 2000 Corporate Resolution and that by signing signature cards and Authorizations,
OFT employees bound the District to the Deposit Agreement’s forum selection clause
and the Treasury Booklet’s arbitration clause. The Bank argues that these documents
either reinstated the terms of the TSB and Deposit Agreement or modified,
supplemented, and amended the terms of the 2005 Contract to include them.48 The
trial court held that after execution of the 2005 contract, which was extended each year
up to November 2009, OFT officials “plainly lacked the authority to bind the District
to the dispute resolution clauses in either the 2004 Treasury Booklet or the 2008
Deposit Agreement.”
There are at least two major impediments to the Bank’s suggested result on this
issue. First, the RFP and the 2005 contract provided that the Contracting Officer was
47
(...continued)
Banking Center maintaining the account, in this case North Carolina.
48
The District suggested that this court need not consider whether OFT
employees retained contracting authority after the 2005 contract was executed
because it did not understand the Bank’s argument to be that subsequent agreements
altered or modified the terms of the existing contract. In its Reply Brief, the Bank
clarified its position to state otherwise.
65
the “only official authorized to contractually bind the District.” Even assuming that
OFT officials retained some authority related to banking services after the execution
of the 2005 contract, the Bank, as a party to that contract, knew that only the
Contracting Officer had authority to agree on behalf of the District to modify or vary
its terms. Even absent actual knowledge of the limitations on a government agent’s
authority, as existed here, “one who contracts with a government agent is
constructively notified of the limits of that agent’s authority, and any reliance on
contrary representations cannot be reasonable.” Williams v. District of Columbia, 902
A.2d 91, 96 (D.C. 2006) (citing Leonard v. District of Columbia, 801 A.2d 82, 86
(D.C. 2002) and Greene, supra, 806 A.2d at 222 n.7 (“persons dealing with a
municipal corporation through its agent are bound to know the nature and extent of the
agent’s authority”) (quoting Coffin, supra, 320 A.2d at 303)) (other citations omitted).
Put another way, the Bank knew that whatever authority other officials had to sign
bank documents on behalf of the District, that authority did not include modification
of the parties’ 2005 contract. Therefore, the Bank could not bind the District to a
modification of the dispute resolution provisions in the 2005 contract simply because
officials, other than the authorized Contracting Officer, signed form bank signature
cards and/or deposit agreements with printed language purporting to impose different
arbitration and forum selection requirements. The trial court found that the individuals
66
who signed these cards for the District were unaware that the fine print had arbitration
and forum selection terms. According to the testimony and trial court findings, they
signed the documents only for the purpose of adding or changing signatories on the
accounts without noting the fine print. None of them intended to effect a modification
of the 2005 contract. Of course, “[a] person who signs a contract after having had an
opportunity to read and understand it is bound by its provisions.” Interdonato v.
Interdonato, 521 A.2d 1124, 1133 (D.C. 1987) (citation omitted). However, that is
not the issue here. The determinative issue in this case is whether the person who
signed the document had authority to bind the District government to a modification
of the 2005 contract. Under the terms of that contract, only the Contracting Officer
had that authority.
Second, the 2005 contract was extended four times after its initial execution,
finally in November 2008 and expiring “on November 12, 2009 or the date any new
contract was executed, whichever came first.” This contract’s essential terms
concerning dispute resolution, incorporation of the PPA, and contract modification
remained unchanged throughout this period. Therefore, to the extent that the Bank
argues that the last executed document controls, that would be the 2005 contract that
was extended each year through November 2009. Therefore, under the Bank’s
67
modification analysis, this contract would have continued to govern dispute resolution
and contract modification.
C. Challenge to the CAB’s Jurisdiction Over the Claims Asserted
Finally, the Bank argues that there is no conflict between the dispute resolution
provisions in the 2005 contract and the arbitration provision it seeks to enforce
because the District’s claims are not subject to the jurisdiction of the Contracting
Officer or CAB. It contends that the District’s claims are either statutory or tort claims
which the Contracting Officer and CAB have no authority to resolve. The District
views the Bank’s argument as its recognition that by incorporating the PPA into the
contract, the parties agreed that the Contracting Officer would hear contract claims,
and the Attorney General for the District could bring an FCA claim in Superior Court.
At the same time, the District agrees with the Bank that its claims do not fall within
the provision of the 2005 contract requiring that the contracting officer decide disputes
related to the contract. It contends that its statutory and tort claims against the Bank
do not turn on the contractual relationship between the parties and that they could have
been asserted against any bank that negotiated the fraudulent checks. Therefore, the
District concedes that the trial court erred in holding that the District’s claims related
68
to the contract, but takes the position that the claims should have been resolved in
Superior Court.
Under the PPA, “[a]ll claims by the District government against a contractor
arising under or relating to a contract shall be decided by the contracting officer who
shall issue a decision in writing. . . .” D.C. Code § 2-308.03 (a)(1) (2001). The
Contract Appeals Board had jurisdiction of “[a]ny claim by the District against a
contractor, when such claim arises under or relates to a contract.” D.C. Code § 2-
309.03 (a)(3) (2001). The statute limits this jurisdiction by providing that the
contracting officer is not authorized “to settle, compromise, pay, or otherwise adjust
any claim involving fraud.” D.C. Code § 308.03 (a)(4) (2001). The PPA provides that
the District may bring a civil action to recover damages or penalties against any person
who commits specified fraudulent acts. D.C. Code § 2-308.14 (a)(1)-(9).
A claim arises under a contract “(1) where the claim ultimately depend[s] on the
existence of a contractual relationship between the parties; (2) resolution of the claim[]
relates to interpretation of the contract; or (3) [a] contract-related tort claim involve[s]
the same operative facts as a parallel claim for breach of contract.” Cheney v. IPD
Analytics, LLC, 583 F. Supp. 2d 108, 122 (D.D.C. 2008) (alteration in original)
69
(quoting Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 694 (8th Cir.
1997)) (internal quotation marks omitted). There must be a “causal connection
between the claim and the contract based on rights, duties, or injury flowing from the
contract.” Id. at 122 (quoting Phillips v. Audio Active, Ltd., 494 F.3d 378, 389 (2d Cir.
2007)) (internal quotation marks omitted). The statute does not define “related to” the
contract or distinguish between the phrases “arising under” and “related to” the
contract. The definition of “related to” is simply “associated with” or “connected
to.”49 There must be some nexus between the contract and the claim asserted such that
reliance on the contracting officer’s expertise promotes a just resolution.
It is not clear on this record that the District’s claims arise under the parties’
contract based on the definition extracted from Cheney, supra, 583 F. Supp. at 122.
The District sued the Bank for violation of the Uniform Commercial Code (Counts I
and II), Negligence (Count III), Fraud (Count IV), Negligent and Intentional Breach
of Fiduciary Duties (Count V), Conversion (Count VI), False Claims Act violations
(Count VII),50 and Failure to Adequately Hire, Train or Supervise (Count VIII).
49
The American Heritage Dictionary of the English Language, 1097 (William
Morris, ed. 1969).
50
In Count VII of its first amended complaint, the District adopted and
incorporated the factual allegations set forth in the preceding eight counts (paragraphs
(continued...)
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Resolution of none of the claims appear to concern an interpretation of the contract,
and there is no parallel breach of contract claim. To some extent, some of the claims
may depend upon the existence of a contractual relationship between the parties. See
Cheney, supra, 583 F. Supp. at 122. Others may not. Nor do all of the claims appear
on the face of the complaint to be connected to the contract itself or require the
expertise of a contracting officer for just resolution. Further inquiry by the trial court
appears to be necessary to make that determination.
This court has held that the CAB does not have jurisdiction over a claim for
professional negligence, recognizing the CAB’s position with respect to its own
jurisdiction. District of Columbia Water and Sewer v. Delon Hampton & Assocs., 851
A.2d 410, 417 n.16 (D.C. 2004) (citing George A. Bass Constr. Co., CAB No. D-869
(June 10, 1991)).51 In particular, this court noted that the CAB had stated that “‘any
50
(...continued)
1 - 117) of its complaint as the basis for its False Act Claims under D.C. Code § 2-
308.14 (a), subsections (2) (knowingly mak[ing], us[ing] or caus[ing] to be made or
used, a false record or statement to get a false claim paid or approved by the
District”), (3) (“conspir[ing] to defraud the District by getting a false claim allowed
or paid by the District”), (8) (failing to disclose after discovery a false claim to the
District received as an inadvertent payment or overpayment), and (9) (knowingly
failing to repay an inadvertent payment or overpayment to the District).
51
In Delon Hampton, an issue under consideration was whether the trial court
abused its discretion in not referring claims for breach of contract and professional
negligence for administrative remedy under the doctrine of primary jurisdiction. 851
(continued...)
71
action based on negligence lies not before the Board but in Superior Court.’” Id.(quoting Bass Constr. Co.). More recently, the CAB has explained that it may
exercise jurisdiction over claims that actually are for defective contract performance,
although asserted in the language for tort actions. In re Chief Procurement Officer
(GTE South, Inc.), 2002 DCBCA LEXIS 23, at *3-4 n.2. Although the CAB
dismissed the tort claims in GTE South because its jurisdiction is limited to contract
actions, it explained circumstances under which it had considered cases asserted as
torts, but that were actually contract claims. Specifically, the CAB stated:
Although, at times, the Board exercises jurisdiction over
claims which are framed in the language of tort actions,
those cases deal with contract performance, not torts
unrelated to performance. For example, references to
“negligence” and “professional malpractice” in performance
of a contract, although sounding like a tort, do not convert
into a tort what is in essence a claim for defective
performance. See, e.g., Fry & Welch Associates, P.C., CAB
No. D-0821, July 31 1997, 44 D.C. 6859, 6875.
GTE South, 2002 DCBCA LEXIS 23 at *3-4 n.2. Whether the District’s claim for
51
(...continued)
A.2d at 416-17. The trial court rejected the argument because the CAB would have
declined to provide an administrative remedy, and the doctrine of primary jurisdiction
does not apply where no administrative remedy exists. Id. at 417 & n.417 n.16.
72
negligence (Count III) is in essence a claim for defective performance remains to be
determined after further inquiry by the trial court.
On the other hand, most of the District’s claims appear to involve fraud
perpetrated by the District’s former employees and allegedly facilitated by the Bank.
To the extent that these claims involve fraud, they are properly pursued in court, given
the PPA’s prohibition against contracting officers paying, compromising, settling or
otherwise adjusting any claim involving fraud, see D.C. Code § 308.03 (a)(4), and
authorization for the District to sue persons committing certain fraudulent acts in
Superior Court for damages. See D.C. Code § 2-308.14 (a)(1). Interpreting a similar
federal statute, 41 U.S.C. 605(a), numerous district courts have held that the
Government can sue in district court whenever fraud is at issue even if the claim itself
is not for fraud. United States v. Menominee Tribal Enterprises, 601 F. Supp. 2d
1061, 1078 (E.D. Wis. 2009) (citing United States v. Unified Industries, 929 F. Supp.
947, 950-51 (E.D. Va. 1996); United States v. Rockwell Int’l Corp., 795 F. Supp.
1131, 1135 (N.D. Ga. 1992)). Similarly, the provision of the PPA lends itself to that
same interpretation.
In summary, we conclude that the District’s claims in the remaining seven
counts may not be dismissed in favor of jurisdiction before the contracting officer and
73
the CAB without a determination of whether those claims can be properly pursued in
that forum or are properly before the Superior Court. That determination must be
made on the basis of the nature of the claim, rather than its title. Consistent with the
principles set forth in this section, the trial court must make that determination with
respect to each count.
For the foregoing reasons, we affirm the trial court’s decision insofar as it holds
that the parties had no agreement to arbitrate disputes in North Carolina. We remand
the case to the trial court with instructions to determine, based on the principles
enunciated in this opinion, which counts, if any, should remain for disposition in the
Superior Court as claims involving fraud or as claims not otherwise within the
jurisdiction of the Contract Appeals Board.
So ordered.