       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0006P (6th Cir.)
                File Name: 00a0006p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                              ;
                               
 DANIEL V. GREEN, et al.,
                               
         Plaintiffs-Appellees,
                               
                               
                                       No. 98-2176
           v.
                               
                                >
 AMERITECH CORPORATION         
                               
                               
 and AMERITECH SERVICES,

       Defendants-Appellants. 
 INC.,
                               
                              1

      Appeal from the United States District Court
      for the Eastern District of Michigan at Flint.
     No. 93-40535—Paul V. Gadola, District Judge.
               Argued: October 26, 1999
           Decided and Filed: January 6, 2000
Before: JONES, MOORE, and GILMAN, Circuit Judges.
                  _________________
                       COUNSEL
ARGUED:         Thomas G. Kienbaum, KIENBAUM,
OPPERWALL, HARDY & PELTON, Birmingham,
Michigan, for Appellants. Rudy J. Huizenga, HUIZENGA &
HERGT, Detroit, Michigan, for Appellees. ON BRIEF:


                            1
2    Green, et al. v. Ameritech Corp., et al.     No. 98-2176

Thomas G. Kienbaum, Noel D. Massie, KIENBAUM,
OPPERWALL, HARDY & PELTON, Birmingham,
Michigan, for Appellants. Rudy J. Huizenga, HUIZENGA &
HERGT, Detroit, Michigan, for Appellees.
                    _________________
                        OPINION
                    _________________
   KAREN NELSON MOORE, Circuit Judge. In this appeal
defendants-appellants Ameritech Services, Inc. and
Ameritech Corp. (hereinafter referred to collectively as
“Ameritech”) challenge an order of the district court vacating
an arbitral award and remanding the case to a new arbitrator
to be selected by the parties. The underlying arbitration
involved plaintiff-appellee Daniel Green’s state law claims of
age and race discrimination and retaliation. The district court
found that the arbitrator had exceeded his powers by failing
sufficiently to explain his decision with respect to each of the
plaintiff’s theories, as the arbitration agreement required, and
it therefore vacated the award. Finding no ambiguity in the
award, the district court refused to remand the matter to the
original arbitrator for clarification, and instead remanded to
a new arbitrator.
  We conclude that although the arbitrator’s opinion was
minimal, it was nevertheless adequate to satisfy the terms of
the agreement. Accordingly, we REVERSE and REMAND
for reinstatement of the arbitral award. Furthermore, we note
that if the arbitrator’s explanation had been inadequate, the
proper remedy would have been a remand to the same
arbitrator for clarification.
                    I. BACKGROUND
   This case originated as a suit brought in state court by
Daniel V. Green, Rhoda A. Giebel, Ruth A. Boyd, and Linda
L. Vincenti against their former employer, Ameritech
Services, Inc., and its parent corporation, Ameritech Corp.,
alleging discrimination under Michigan’s Elliott-Larsen Civil
18       Green, et al. v. Ameritech Corp., et al.          No. 98-2176         No. 98-2176      Green, et al. v. Ameritech Corp., et al.         3

functus officio doctrine.9 The purpose of this exception is to                 Rights Act, MICH. COMP. LAWS ANN. § 37.2101 et seq. (West
permit the arbitrator to complete an assigned task, and in this                1985 & Supp. 1999). Ameritech removed the action to the
case the district court adjudged the arbitrator’s task                         United States District Court for the Eastern District of
incompletely executed. Remanding to Arbitrator Googasian                       Michigan based on diversity of citizenship.
under these circumstances would not implicate any of the
concerns underlying the functus officio doctrine, as he would                    Before trial, the parties entered into an arbitration
simply be completing his duties by clarifying his reasoning,                   agreement. The following provisions of the arbitration
not reopening the merits of the case. Cf. Teamsters Local 312                  agreement are particularly relevant to this appeal:
v. Matlack, Inc., 118 F.3d 985, 992 (3d Cir. 1997)
(“[W]hether a case falls within one of these [doctrinal                          1.   DISMISSAL OF CASE:
exceptions] must be considered in light of the underlying
rationale for the modern application of functus officio.”).                           A stipulation dismissing Case No. 93-CV-73764-DT
Therefore, if the district court were correct in its conclusion                       with prejudice shall be filed after (1) this Agreement
that Arbitrator Googasian failed to explain his award, the                            has been executed and (2) Plaintiffs have filed briefs
proper remedy would have been a remand to the same                                    in opposition to all of Defendants’ motions now
arbitrator for clarification. We emphasize, however, that in                          pending before the Court.
Part II.B. we have concluded that Arbitrator Googasian
minimally satisfied the explanation requirement stated in the                    2.   SELECTION OF ARBITRATOR:
arbitration agreement; accordingly, no remand to any                                  The parties agree that George Googasian of
arbitrator is warranted in this case.                                                 Bloomfield Hills, Michigan, shall be retained as the
                        III. CONCLUSION                                               arbitrator.

  For the foregoing reasons, we REVERSE the order of the                              ....
district court and REMAND for reinstatement of the arbitral                      10. TIME FOR AWARD: The arbitrator shall issue an
award.                                                                               award within twenty-one (21) days from the date set
                                                                                     for filing of post arbitration briefs (if such briefs are
                                                                                     filed) or within twenty-one (21) days from the last
                                                                                     date of testimony. The arbitrator’s award shall be
                                                                                     accompanied by an opinion which explains the
                                                                                     arbitrator’s decision with respect to each theory
                                                                                     advanced by each Plaintiff and the arbitrator’s
                                                                                     calculation of the types of damages, if any, awarded
                                                                                     to each Plaintiff.
                                                                                 11. AWARD FINAL AND BINDING: The award of the
                                                                                     arbitrator shall be considered final and binding and
     9
       Remand on this basis would be authorized only because the parties’            judgment upon the award may be entered in the
agreement imposed a duty of explanation on the arbitrator. We stress that            United States District Court for the Eastern District
in the ordinary case remand for the purpose of having the arbitrator clarify         of Michigan, Southern Division. Any challenge to
his reasoning would be inappropriate.
4      Green, et al. v. Ameritech Corp., et al.   No. 98-2176      No. 98-2176      Green, et al. v. Ameritech Corp., et al.     17

        the award shall be made only for the reasons               submission has been fully executed, an ambiguity arises
        enumerated in section 10 of the Federal Arbitration        which the arbitrator is entitled to clarify.” La Vale Plaza, 378
        Act [(hereinafter “FAA”)], 9 U.S.C. §10, and must          F.2d at 573; see also IV MACNEIL, SPEIDEL & STIPANOWICH
        be filed within fourteen (14) days of the award. If a      § 42.2.4.1, at 42:11 (noting that arbitrators have the authority
        party challenges the award and its challenge is            “to correct mistakes apparent on the face of the award, decide
        rejected by federal courts, that party shall pay costs     issues undecided by the award, and clarify ambiguity
        and reasonable attorney fees incurred by the               respecting the completeness of the award” (footnotes
        opposing party in defending the challenge. Nothing         omitted)).
        in this section implies that the arbitrator’s factual
        findings or rulings on admission of evidence shall be         In the instant case, the district court concluded, incorrectly
        grounds for challenging the award.                         in our view, that Arbitrator Googasian breached the
                                                                   arbitration agreement because he failed fully to execute his
        ....                                                       obligation to explain his award, and it refused to remand.
                                                                   Courts usually remand to the original arbitrator for
    14. APPLICABILITY OF FEDERAL ARBITRATION                       clarification of an ambiguous award when the award fails to
        ACT: This Agreement is made pursuant to and is             address a contingency that later arises or when the award is
        governed by the Federal Arbitration Act, 9 U.S.C.          susceptible to more than one interpretation. See, e.g., Glass,
        §1 et seq.                                                 Molders, Pottery, Plastics & Allied Workers Int’l Union,
                                                                   Local 182B v. Excelsior Foundry Co., 56 F.3d 844, 847 (7th
Joint Appendix (hereinafter “J.A.”) at 25-29 (Arbitration          Cir. 1995) (holding that uncertainty in an arbitration award
Agreement). On July 25, 1996, in accordance with the               about which party would pay for the employee’s rehabilitation
arbitration agreement, the district court dismissed the action     justified the arbitrator’s extension of the deadline fixed in the
with prejudice, and the case proceeded to arbitration. When        original award, and explaining that this question “can fairly be
the arbitration began, all four plaintiffs were parties to the     characterized as ‘interpretive,’ allowing [the plaintiff-
proceeding; within a few days, however, all plaintiffs except      appellant] to crawl though the loophole in the doctrine of
Green settled.                                                     functus officio for clarification or completion, as distinct from
                                                                   alteration, of the arbitral award”); Colonial Penn Ins. Co. v.
   The parties filed their post-arbitration briefs on May 5,       Omaha Indem. Co., 943 F.2d 327, 335 (3d Cir. 1991) (“[T]he
1997. On May 20, 1997, Arbitrator Googasian wrote a letter         district court would be authorized to remand so that the
to Green’s counsel stating that he had reviewed the case and       arbitrators themselves could clarify their intent as to the
“would request the opportunity to discuss the matter with          remedy awarded.”); Courier-Citizen Co. v. Boston
each counsel privately before we move forward.” J.A. at 86         Electrotypers Union No. 11, 702 F.2d 273, 279 (1st Cir.
(Letter from Googasian to Huizenga). In his district court         1983) (holding that an arbitrator did not run afoul of the
action seeking to vacate the arbitrator’s decision, Green          functus officio doctrine when he issued a second arbitration
explained that in July of 1997, Arbitrator Googasian               award; the first award was incomplete and “the second award
“indicated to the Plaintiff he wanted to settle the case, he had   simply fleshed out the remedy announced initially”).
not yet made a decision in the case but was having a hard time
finding discrimination.” J.A. at 58 (Appeal of Arbitrator’s          While a failure fully to explain an award does not leave
Ruling). In a letter dated January 14, 1998, Green’s counsel       such an interpretive gap, we believe that it would nevertheless
wrote to Arbitrator Googasian, stating that the defendants had     authorize a remand based on this third exception to the
indicated that they were not interested in settling and
16    Green, et al. v. Ameritech Corp., et al.     No. 98-2176      No. 98-2176      Green, et al. v. Ameritech Corp., et al.     5

original arbitrator on the doctrine of functus officio. Black’s     inquiring when a decision would issue. J.A. at 94 (Letter
Law Dictionary explains that the term means “[h]aving               from Huizenga to Googasian). The arbitrator did not respond
fulfilled the function, discharged the office, or accomplished      to this letter, nor did he respond to subsequent letters by both
the purpose, and therefore of no further force or authority.”       parties. On May 1, 1998, Green filed a “Motion to Remove
BLACK’S LAW DICTIONARY 673 (6th ed. 1990); see also III             Arbitrator and Reinstate Case to Federal Court.” In the
MACNEIL, SPEIDEL & STIPANOWICH § 37.6.1.1, at 37:25 (“In            motion, Green alleged that Arbitrator Googasian’s failure to
most cases arbitrators’ appointments continue until they have       issue a timely opinion was a breach of the arbitration
heard the case, made a final award, and disclosed it to both        agreement, and he requested that the district court remove
parties. At this time their task is performed, their duties under   Arbitrator Googasian and appoint a new arbitrator, or in the
the arbitration agreement are discharged, and their arbitral        alternative reinstate the case and allow it to proceed to trial.
authority is at an end.”). The Third Circuit has explained:
“The policy which lies behind this [doctrine] is an                   Before the district court ruled on Green’s motion, Arbitrator
unwillingness to permit one who is not a judicial officer and       Googasian rendered his opinion in favor of Ameritech. The
who acts informally and sporadically, to re-examine a final         opinion itself is six pages long. It sets forth the plaintiff’s
decision which he has already rendered, because of the              claims of age and race discrimination and retaliation, and it
potential evil of outside communication and unilateral              focuses primarily on a description of the “Corporate Resizing
influence which might affect a new conclusion.” La Vale             Process,” or “CRESP” process, which allegedly operated in
Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 572 (3d Cir.        a discriminatory manner. The opinion concludes as follows:
1967).
                                                                                      AGE DISCRIMINATION
   The doctrine of functus officio contains several exceptions.
This court has noted: “[The] rule [of functus officio] was              Considering all the evidence, the Arbitrator finds that
based on the notion that after an arbitrator has rendered an          Plaintiff Daniel Green has not met his burden of proof
award, his contractual powers have lapsed and he is ‘functus          that the decision to terminate his employment in
officio.’ This rule, however, has its limits. A remand is             November of 1992, constituted age discrimination in
proper, both at common law and under the federal law of               violation [of the] Elliott-Larsen Civil Rights Act.
labor arbitration contracts, to clarify an ambiguous award or
to require the arbitrator to address an issue submitted to him                       RACE DISCRIMINATION
but not resolved by the award.” Industrial Mut. Ass’n, Inc. v.
Amalgamated Workers, Local No. 383, 725 F.2d 406, 412 n.3               Considering all the evidence, the Arbitrator finds that
(6th Cir. 1984) (citations omitted). For this proposition, the        Plaintiff Daniel Green has not met his burden of proof
Industrial Mutual court cited La Vale Plaza, which contains           that the decision to terminate his employment in
a more detailed discussion of the exceptions. The La Vale             November of 1992, constituted race discrimination in
Plaza court explained that (1) an “arbitrator can correct a           violation [of the] Elliott-Larsen Civil Rights Act.
mistake which is apparent on the face of his award”; (2)                                   RETALIATION
“where the award does not adjudicate an issue which has been
submitted, then as to such issue the arbitrator has not                 Considering all the evidence, the Arbitrator finds that
exhausted his function and it remains open to him for                 Plaintiff Daniel Green has not met his burden of proving,
subsequent determination”; and (3) “[w]here the award,                in accordance with the standards set under the Elliott-
although seemingly complete, leaves doubt whether the                 Larsen Civil Rights Act, that retaliation for protected
6         Green, et al. v. Ameritech Corp., et al.           No. 98-2176       No. 98-2176      Green, et al. v. Ameritech Corp., et al.    15

    activity was a factor which made a difference in the                       Appellee’s Br. at 23-24. However, the arbitrator was not
    decision to terminate his employment in November of                        required by the agreement “fully” to set forth the facts and his
    1992. The Arbitrator finds no evidence to support the                      conclusions; the agreement simply called for an explanation.
    Plaintiff’s position that retaliation was, in any way, a                   Although Arbitrator Googasian’s opinion was brief and
    factor in Plaintiff Daniel Green’s termination.                            conclusory, he did “explain” why Ameritech prevailed on
                                                                               each theory, namely, that Green had not met his burden of
J.A. at 44-45 (Arbitrator’s Op.).                                              proving that the decision was discriminatory or retaliatory.
  On June 9, 1998, Green filed an “Appeal of Arbitrator’s                         If parties to an arbitration agreement wish a more detailed
Ruling” in  the District Court for the Eastern District of                     arbitral opinion, they should clearly state in the agreement the
Michigan1 under the same case number as the original action.                   degree of specificity required. In addition, the use of familiar
Green asked the district court to vacate Arbitrator2                           legal terms would serve to ensure that reviewing courts have
Googasian’s ruling pursuant to 9 U.S.C. § 10(a)(3) and (4)                     a standard to guide their analysis. In the instant case,
on the grounds that: (1) Arbitrator Googasian’s decision was                   Arbitrator Googasian’s opinion was certainly minimal. The
in breach of the agreement because it was not issued within                    arbitration agreement, however, contained only the inexact
twenty-one days of the filing of post-arbitration briefs; (2)                  requirement of an explanation as to each theory, and we find
Arbitrator Googasian exceeded his powers by issuing a                          it significant that the arbitrator’s opinion provided a separate
decision after being notified that he was in breach; and (3)                   discussion regarding each of the plaintiff’s theories and
                                                                               explained, albeit briefly, the reasons for denying recovery on
                                                                               each one.
     1
       This challenge was timely under the agreement, as Ameritech agreed
to allow the appeal period for the arbitrator’s decision to begin running on   C. The Remedy
May 26, 1998, rather than May 7, which was the date of the award.
                                                                                 Ameritech’s final contention is that the district court erred
     2
         Section 10 provides in relevant part:                                 in declining to remand to Arbitrator Googasian for
                                                                               supplementation and clarification and in choosing instead to
          (a) In any of the following cases the United States court in         vacate the award and remand to a new arbitrator to be selected
     and for the district wherein the award was made may make an               by the parties. Even were we to conclude that the arbitrator’s
     order vacating the award upon the application of any party to the
     arbitration —                                                             opinion did not satisfy the contractual requirement of an
                                                                               explanation of each of the plaintiff’s theories, we could not
                ....                                                           affirm the district court’s order to remand to a new arbitrator.
                (3) Where the arbitrators were guilty of misconduct in           In its analysis, the district court misconstrued the governing
            refusing to postpone the hearing, upon sufficient cause
            shown, or in refusing to hear evidence pertinent and               law. The district court believed that remand to Arbitrator
            material to the controversy; or of any other misbehavior by        Googasian was not an option; it stated that “[r]emand is
            which the rights of any party have been prejudiced.                available when an arbitration award is ‘ambiguous.’” J.A. at
                                                                               130 (Dist. Ct. Op.). Finding that Arbitrator Googasian’s
                (4) Where the arbitrators exceeded their powers, or so         award was not ambiguous, the district court concluded that it
            imperfectly executed them that a mutual, final, and definite       could not remand for an explanation. As both parties noted
            award upon the subject matter submitted was not made.
                                                                               in their briefs, the district court must have based its
9 U.S.C. § 10.                                                                 conclusion that it lacked the authority to remand to the
14       Green, et al. v. Ameritech Corp., et al.          No. 98-2176        No. 98-2176        Green, et al. v. Ameritech Corp., et al.           7

meanings.” New Elliott Corp. v. MAN Gutehoffnungshütte                        Arbitrator Googasian breached the agreement by not
AG, 969 F. Supp. 13, 15 (S.D.N.Y. 1997). In addition, the                     explaining the decision with respect to each theory advanced
arbitration panel in Western Employers actually refused to                    by the plaintiff.
make the requisite findings and conclusions, instead
questioning whether they were bound by the parties’                              On August 6, 1998, the district court issued an opinion
agreement; the panel did not include any findings or                          vacating Arbitrator Googasian’s award. With regard to
conclusions. Unlike in the present case where the parties                     Green’s first claim, the district court found that Green had
dispute whether Arbitrator Googasian’s statements                             waived his right to object to the timeliness of Arbitrator
“explained” his decision, the sufficiency of the panel’s                      Googasian’s opinion because he went along with Arbitrator
opinion in Western Employers does not seem to have been in                    Googasian’s settlement plans, and found in the alternative that
doubt.                                                                        Green was not prejudiced by the delay. As to Green’s claim
                                                                              that Arbitrator Googasian improperly issued a decision in
  Because “explain” is not a standard legal term, we are left                 favor of Ameritech after Green’s motion for removal, the
with little guidance as to how to determine whether the                       district court found that the arbitrator was not biased against
arbitrator explained his decision        so as to meet the                    Green. The court went on to state: “In fact, it seems to this
requirements of the agreement.8 To resolve this question, we                  court that if the arbitrator was biased at all, he was biased in
must examine closely the arbitrator’s opinion. In his opinion,                favor of the plaintiff. The arbitrator took the unusual step of
the arbitrator set forth facts pertaining to the dispute and a                attempting to obtain a settlement for the plaintiff after the
brief discussion of each of the three claims. With regard to                  arbitration proceedings.” J.A. at 128 n.2 (Dist. Ct. Op.). The
age and race discrimination, the arbitrator wrote that                        district court did find merit, however, in Green’s third claim
considering all of the evidence, Green had not met his burden                 that the arbitrator exceeded his authority by failing to explain
of proof that the decision to terminate his employment                        his decision.3 The court reasoned: “Here, the arbitrator did
constituted discrimination. The arbitrator wrote slightly more                not ‘explain’ his decision with respect to each one of
about the retaliation claim, stating that Green had not met his               plaintiff’s theories, as the term ‘explain’ is commonly
burden of proving that retaliation for protected activity was a               understood. Rather, the arbitrator merely announced his
factor in the decision to terminate his employment. Green                     decision with respect to each one of plaintiff’s theories. The
takes issue with the brevity and the conclusory nature of the                 arbitrator’s opinion is totally conclusory and insufficient
arbitrator’s opinion:                                                         according to the terms of the Arbitration Agreement.” J.A. at
                                                                              129 (Dist. Ct. Op.). The district court therefore vacated the
  The arbitrator did not fully set forth the facts of the case                arbitration agreement and remanded the matter to a new
  presented by the Plaintiff or the Defendants. The                           arbitrator to be selected by the parties. The court refused
  arbitrator did not fully set forth the legal theories of the                Ameritech’s suggestion that the award should instead be
  Plaintiff and the Defendants. The arbitrator did not                        remanded to Arbitrator Googasian for clarification, finding
  indicate which legal theories he would follow and which                     that the award was not ambiguous.
  he would not follow and why. The arbitrator did not
  apply the facts to the law of the case.

     8
      Ordinarily, of course, “[a]rbitrators have no obligation to the court       3
to give their reasons for an award.” United Steelworkers v. Enterprise             Although the district court cited 9 U.S.C. § 10(a)(3), its decision
Wheel & Car Corp., 363 U.S. 593, 598 (1960).                                  appears to have been based in fact on § 10(a)(4).
8    Green, et al. v. Ameritech Corp., et al.     No. 98-2176      No. 98-2176         Green, et al. v. Ameritech Corp., et al.   13

   Ameritech filed a motion for reconsideration in the district    id.; Western Employers apparently erroneously believed that
court, claiming that “the Court was wrong in concluding that       the inclusion of such findings would entitle it to greater
a more detailed opinion should not be requested from               judicial scrutiny in the event that the arbitral award were
Arbitrator Googasian.” J.A. at 143 (Mot. for Recons.). In          contested. See id. at 261. In the course of the hearings before
support of its claim that submission of the action to an           the three-member panel constituted by NASD, Western
arbitrator other than Googasian impermissibly rewrote the          Employers requested findings of fact and conclusions of law
agreement, Ameritech attached the affidavits of two of its         several times. In response to one of these requests, Jefferies’s
attorneys, who explained that the selection of Arbitrator          counsel informed the panel that Western Employers could use
Googasian was crucial to Ameritech’s decision to submit to         such findings for purposes of collateral estoppel in a related
binding arbitration. J.A. at 156-61 (Affs. of Lichtenstein and     class action pending against Jefferies. Although Western
Kienbaum). The district court denied this motion, and              Employers argued that the panel was required to make such
Ameritech appealed.                                                findings pursuant to the agreement, “[t]he Chairman of the
                                                                   panel responded that the panel was not bound by an
                       II. ANALYSIS                                agreement between Jefferies and Western [Employers].” Id.
                                                                   at 260. The panel eventually rendered an award in favor of
A. District Court’s Subject Matter Jurisdiction                    Jefferies on all disputed issues, and it “did not include any
                                                                   findings of fact and conclusions of law in its award.” Id.
  Ameritech first challenges the subject matter jurisdiction of
the district court. This court applies a de novo standard of         The Ninth Circuit noted that it had “traditionally vacated
review to questions of subject matter jurisdiction. See            arbitration awards under [§ 10(d)7] in cases where the
Friends of the Crystal River v. EPA, 35 F.3d 1073, 1077 (6th       arbitrators [have] somehow alter[ed] the parties’ contractual
Cir. 1994).                                                        obligations.” Id. at 262. While the provision is most
                                                                   commonly violated when arbitrators rule on issues not
  Ameritech’s jurisdictional argument is that, since the           submitted to arbitration, the Ninth Circuit concluded that
district court dismissed the case on July 25, 1996, pursuant to    “arbitrators can also ‘exceed their powers’ under 9 U.S.C.
the parties’ agreement to arbitrate, there was “no open            § 10(d) when they fail to meet their obligations, as specified
proceeding below” through which Green could challenge the          in a given contract, to the parties.” Id. Finding a violation,
arbitrator’s ruling. Appellant’s Br. at 17. Ameritech does not     the court vacated the arbitrator’s award.
contend that a proper challenge to Arbitrator Googasian’s
decision could not have been brought. Its contention is that,         Western Employers, however, is significantly different from
rather than instituting a new action under § 10 of the FAA in      the instant case. First, the standard of explanation called for
order to challenge the arbitral award, Green instead               in Western Employers is clear — the arbitration panel was
improperly filed an appeal in a dismissed case.                    required to make findings of fact and conclusions of law —
                                                                   whereas the agreement in the present case calls simply for an
  Green argues that the fact that a dismissal rather than a stay   explanation without specifying what that means. Unlike the
was issued is of no importance, citing the Fifth Circuit’s         term “explain,” “‘[f]indings of fact’ and ‘conclusions of law’
decision in Alford v. Dean Witter Reynolds, Inc., 975 F.2d         are familiar terms in legal parlance with reasonably plain
1161 (5th Cir. 1992). In Alford, which involved an appeal of
a motion to compel arbitration, the plaintiff-appellant argued
that the district court erred in dismissing her claims with
prejudice rather than staying them pursuant to § 3 of the FAA.        7
                                                                          Section 10(a)(4) was formerly § 10(d).
12       Green, et al. v. Ameritech Corp., et al.          No. 98-2176         No. 98-2176      Green, et al. v. Ameritech Corp., et al.        9

arbitration award, we review factual findings for clear error                  See id. at 1164.     The Fifth Circuit rejected the claim,
and questions of law de novo. See Glennon v. Dean Witter                       explaining:
Reynolds, Inc., 83 F.3d 132, 135 (6th Cir. 1996); see also
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-                     The weight of authority clearly supports dismissal of the
48 (1995) (agreeing with the majority of circuits that review                    case when all of the issues raised in the district court
of a district court decision upholding an arbitration award                      must be submitted to arbitration. As stated in Sea-Land
“should proceed like review of any other district court                          [Service, Inc. v. Sea-Land of Puerto Rico, Inc., 636
decision finding an agreement between parties, e.g., accepting                   F.Supp. 750 (D. P.R. 1986)]:
findings of fact that are not ‘clearly erroneous’ but deciding                       Although we understand that plaintiff’s motion to
questions of law de novo”). The question whether an                                compel arbitration must be granted, we do not believe
arbitrator has exceeded his authority is a question of law that                    the proper course is to stay the action pending
we review de novo. See MidMichigan Reg’l Med. Ctr.-Clare                           arbitration. Given our ruling that all issues raised in
v. Professional Employees Div. of Local 79, Serv. Employee                         this action are arbitrable and must be submitted to
Int’l Union, 183 F.3d 497, 501 (6th Cir. 1999). The district                       arbitration, retaining jurisdiction and staying the action
court’s determination that Arbitrator Googasian did not                            will serve no purpose. Any post-arbitration remedies
perform in accordance with the arbitration agreement involves                      sought by the parties will not entail renewed
an interpretation of the meaning of “explain,” and as such is                      consideration and adjudication of the merits of the
also reviewed de novo. See, e.g., Boyer v. Douglas                                 controversy but would be circumscribed to a judicial
Components Corp., 986 F.2d 999, 1003 (6th Cir. 1993)                               review of the arbitrator’s award in the limited manner
(“[C]ontract interpretation is generally ‘a question of law not                    prescribed by law.
subject to the clearly erroneous standard’ . . . .” (quoting
Weimer v. Kurz-Kasch, Inc., 773 F.2d 669, 671 (6th Cir.                        Alford, 975 F.2d at 1164 (quoting Sea-Land Service, Inc., 636
1985))).                                                                       F.Supp. at 757) (citations omitted). Although it is certainly
                                                                               true that dismissal with prejudice of a plaintiff’s
   In ruling that Arbitrator Googasian exceeded his authority                  discrimination claims has no effect upon a subsequent
by failing to explain sufficiently his decision,6 the district                 challenge to an arbitrator’s ruling, which is an entirely
court relied heavily on the Ninth Circuit’s decision in Western                separate action, Green’s argument does not address
Employers Insurance Co. v. Jefferies & Co., 958 F.2d 258                       Ameritech’s objection to the procedure used to challenge
(9th Cir. 1992). In that case, the parties executed a Limited                  Arbitrator Googasian’s ruling.
Trading Authorization that included a standard agreement to
arbitrate any disputes under the rules of the National                           In order to challenge an arbitrator’s decision under the FAA
Association of Securities Dealers (“NASD”). See id. at 259.                    when there is no pending proceeding in the district court, the
At the request of Western Employers, “the parties altered the                  moving party must establish subject matter jurisdiction.
agreement to require arbitrators to accompany any award with                   Ameritech is correct in asserting that the FAA does not
a statement of their findings of fact and conclusions of law, ”                independently confer subject matter jurisdiction on the district
                                                                               court. See Ford v. Hamilton Invs., Inc., 29 F.3d 255, 257 (6th
                                                                               Cir. 1994) (“It is well established . . . that § 10 of the
     6
       For purposes of this opinion, we shall assume without deciding that     Arbitration Act does not constitute a grant of subject matter
an arbitrator can exceed his powers in violation of § 10(a)(4) by failing to   jurisdiction.”); IV IAN R. MACNEIL, RICHARD E. SPEIDEL &
fulfill his obligations, as opposed to by overstepping the bounds of his       THOMAS J. STIPANOWICH, FEDERAL ARBITRATION LAW
authority.
10       Green, et al. v. Ameritech Corp., et al.          No. 98-2176        No. 98-2176         Green, et al. v. Ameritech Corp., et al.              11

§ 38.1.4, at 38:7. However, in the case at bar there was a                    error did not bar the district court’s exercise of subject matter
basis for subject matter jurisdiction in the district court                   jurisdiction. The district court clearly had diversity
pursuant to 28 U.S.C. § 1332. Additionally, the arbitration                   jurisdiction over the action. While § 10 limits the scope of a
agreement recognizes the district court’s subject matter                      district court’s jurisdiction to review arbitral awards to four
jurisdiction with regard to enforcement of and challenges to                  specified grounds, Green’s challenge fell into one of the
the arbitration award: “The award of the arbitrator shall be                  categories listed in § 10. The district court’s jurisdiction to
considered final and binding and judgment upon the award                      review Green’s challenge was therefore not limited by § 10 or
may be entered in the United States District Court for the                    the parties’ agreement, which contemplated review pursuant
Eastern District of Michigan, Southern Division. Any                          to § 10. In these circumstances, the district court properly
challenge to the award shall be made only for the reasons                     exercised subject matter jurisdiction, and we have jurisdiction
enumerated in section 10 of the Federal Arbitration Act . . . .”              to review the district court’s decision pursuant to 9 U.S.C.
J.A. at 28 (Arbitration Agreement).                                           § 16(a)(1)(E) and 28 U.S.C. § 1291.
  Ameritech essentially argues that the procedure employed                    B. Whether Arbitrator Googasian Exceeded His Powers
by Green to challenge the arbitrator’s decision deprived the                     Under 9 U.S.C. § 10(a)(4)
district court of the subject matter jurisdiction it otherwise
would have had. Rather than filing a “new” motion under the                     The district court found that Arbitrator Googasian exceeded
FAA, Green filed an “appeal” of the arbitrator’s decision                     his powers because he failed to explain his decision as called
using the case4 number of the dismissed case, and naming the                  for by the arbitration agreement. The district court concluded
same judge.        Ameritech contends that because Green                      that the arbitrator “merely announced his decision with
proceeded under the old case, he also failed to reestablish                   respect to each one of plaintiff’s theories,” and that the
diversity jurisdiction. Although the proper procedure for                     opinion was “insufficient according to the terms of the
initiating a proceeding under § 10 when there is no prior                     Arbitration Agreement.” J.A. at 129 (Dist. Ct. Op.). When
jurisdictional basis is to file a motion to vacate the award that             reviewing a district court’s decision to confirm or vacate an
sets forth the facts establishing jurisdiction,5 Green’s pleading

                                                                                   motion challenges this, in which case the basis of the challenge
     4                                                                             should be set out;
      The “appeal” was eventually renumbered and assigned to a different                (4) a statement that the arbitrators made an award in favor
district judge because the original judge recused himself.                         of petitioner on a given date and setting out the essential terms
     5                                                                             of the award;
      Section 10 of the FAA provides that a party seeking to vacate the                 (5) a statement of the basis or bases for challenging the
award should make an “application,” and § 6 states that “[a]ny application         award, relating each to the section(s) of FAA §10 and/or FAA
to the court hereunder shall be made and heard in the manner provided by           §11 upon which the challenge is based; and
law for the making and hearing of motions.” 9 U.S.C. § 6. Therefore, a                  (6) a request that the court vacate the award pursuant to
party should initiate a proceeding under § 10 by filing a motion to vacate,        FAA §10, or where modification is sought, that the court modify
not a complaint. See IV MACNEIL, SPEIDEL & STIPANOWICH § 38.4.3.1,                 the award in particular respects pursuant to FAA §11, and
at 38:60. A motion to vacate should include the following information,             confirm it as so modified. In the latter case the motion should
unless the information is already before the court:                                request that that [sic] judgment be entered on the award in favor
          (1) The name and address of the petitioner and respondent;               of petitioner including interest and costs. Where the award is for
          (2) facts establishing the jurisdiction of the court;                    monetary relief, the amount requested should be the amount of
          (3) a statement that the parties entered into a contract                 the award plus interest and costs.
     containing an arbitration clause on a given date, unless the             Id. § 38.4.3.1, at 38:61 to 38:62 (footnotes omitted).
