                      UNITED STATES COURT OF APPEALS
                             FOR THE EIGHTH CIRCUIT



No.     99-1009WMKc
Legion Insurance Co.,                 *
                                      *
       Appellee,                      *
                                      *    Appeal from the United States
                                      *
  V.                                       District Court for the
                                      *    Western District of Missouri
VCW, Inc .; Preferred                 *
Administrative Services, Inc.,        *
                                      *
       Appellants.                    *



        Appellee's petition for rehearing by the panel has been considered
by the court and is granted.     The opinion and judgment of this court
entered on October 21, 1999, are vacated.
        On the court's own motion the opinion of October 21, 1999, is withdrawn
and the attached opinion is filed in its stead.



                                      November 24, 1999




Order Entered at the Direction of the Court:


Clerk, U.S. Court of Appeals, Eighth Circuit
                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-1009
                                     ___________

Legion Insurance Co.,                  *
                                       *
             Appellee,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
VCW, Inc.; Preferred Administrative    *
Services, Inc.,                        *
                                       *
             Appellants.               *
                                  ___________

                              Submitted: September 16, 1999

                                   Filed: November 24, 1999
                                    ___________

Before BEAM and FAGG, Circuit Judges, and BOGUE,1 District Judge.
                              ___________

BEAM, Circuit Judge.

       The doctrine of functus officio prevents arbitrators from revisiting a final award
after the final award has been issued.2 In this appeal by VCW, Inc., and Preferred

      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      2
       See Domino Group, Inc. v. Charlie Parker Memorial Found., 985 F.2d 417, 420
(8th Cir. 1993); Local P-9, United Food and Commercial Workers Int'l Union, v.
George A. Hormel & Co., 776 F.2d 1393, 1394 (8th Cir. 1985).
Administrative Services, Inc. (PAS), we hold that this doctrine prevented an arbitration
panel from rescinding a final arbitration award after a federal district court decided to
vacate in part and confirm in part that award. We also hold that the district court erred
when it used section 10 of the Federal Arbitration Act (FAA) to both vacate and
confirm the award.

I.    BACKGROUND

      VCW markets insurance policies to truckers. In 1993, Legion Insurance Co. and
VCW agreed that Legion would provide insurance policies and that VCW would
market the policies. The deal provided, in part, that: (1) VCW would collect premiums
for Legion; (2) PAS, a VCW affiliate, would adjust and administer claims; (3) Legion
would reinsure the risk with Mutual Indemnity (Bermuda) Ltd. (Mutual); and (4) VCW
would post letters of credit in favor of Mutual as a security deposit.

       Ultimately, the parties became disgruntled with each other's performance.
Legion asserted that VCW failed to remit premiums and VCW contended that Legion
and Mutual wrongfully refused to reduce VCW's letters of credit obligations. The
claims were submitted to an arbitration panel. Resolution of the claims set off a
decisional ping-pong match between the arbitration panel and the federal district court.

       First, the arbitration panel heard both Legion's and VCW's claims and issued an
"Interim Order" that instructed VCW to pay premiums to Legion. The order also
instructed Mutual Indemnity to reduce the amount of VCW's letters of credit.

       Legion then asked the district court to nullify the portion of the arbitration award
that reduced the letters of credit. The district court granted Legion's request, finding
that the arbitration panel had exceeded its powers in arbitrating the issue. Thus, the
district court vacated that portion of the arbitration panel's order, but confirmed the
portion of the order that awarded unpaid premiums.

                                           -2-
       Not satisfied with the district court ruling, VCW and PAS returned to the
arbitration panel and requested that the panel rescind its award of premiums to Legion.
The arbitration panel granted the request. The panel stated that it had intended its
original award of premiums to be indivisible from the award of a reduction of the letters
of credit.

       Finally, Legion returned to district court and filed a motion to vacate the
arbitration panel's second order that rescinded the award of premiums. The district
court then vacated the panel's order, ruling that the doctrine of functus officio barred
the panel from rescinding the award.

       VCW and PAS appeal the district court's order vacating the panel's second order.
 VCW and PAS also appeal the district court's decision to vacate in part and to confirm
in part the arbitration panel's first order.3

II.   DISCUSSION

      A.     Applicability of the Functus Officio Doctrine

        VCW first argues that the functus officio doctrine is inapplicable because the
arbitration panel's first order was not final.4 "Whether the award indicates that [it] is
final and whether the arbitrator intended the award to be final are factors in determining
if an arbitration award is final." Local 36, Sheet Metal Workers Int'l Assoc. v. Pevely
Sheet Metal Co., 951 F.2d 947, 949 (8th Cir. 1992).



      3
       Legion has moved to supplement the record on appeal. We grant that motion,
but note that the supplemental information has no bearing on our decision.
      4
       We review questions of law de novo. See United States v. Garner, 181 F.3d
988, 991 (8th Cir. 1999).

                                           -3-
        In this case, we have no doubt that the arbitration panel intended the award of
premiums to be a final order. This intent is shown by language in the order itself that
instructs the parties to seek further relief in federal district court. The arbitrators
certainly would not have so instructed if they had planned to revisit, and possibly
rescind, the award of premiums at a later date. Moreover, the parties must have felt
that the arbitrators intended the award of premiums to be final because there is nothing
in the record to indicate that either side argued to the district court that the court did not
have jurisdiction to review the award for lack of finality.

       VCW also argues that the order was not final because the panel still had to
decide additional issues, such as the amount of adjustments to the award of premiums.
An award cannot be final if significant issues still need to be determined. See id.
However, we do not think that a minor adjustment to the award creates an important
issue. Further, an order does not have to be final in all aspects for the functus officio
doctrine to apply. See Domino Group, Inc. v. Charlie Parker Memorial Found., 985
F.2d 417 (8th Cir. 1993) (applying functus officio doctrine when the arbitrator still had
to clarify an award of damages).

      Because we find the order was final, VCW is only entitled to relief if an
exception to the doctrine applies. Neither of the two exceptions to the doctrine that
have been recognized in this circuit is applicable. See Local P-9, United Food and
Commercial Workers Int'l Union v. George A. Hormel & Co., 776 F.2d 1393, 1394
(8th Cir. 1985) (recognizing exceptions to the functus officio doctrine for mistakes
evident on the face of the award and for changes when the parties consent). VCW
urges that we create an additional exception that would allow arbitrators to clarify a
final award that is incomplete because the award failed to address a post-award
contingency. To bolster this argument, VCW relies principally on two cases from other
circuits. See International Bhd. of Teamsters v. Silver State Disposal Serv., Inc., 109
F.3d 1409 (9th Cir. 1997); Glass, Molders, Pottery, Plastics and Allied Workers Int'l
Union v. Excelsior Foundry Co., 56 F.3d 844 (7th Cir. 1995).

                                             -4-
       But, even if we were to adopt this broad exception, this case is completely
different from the cases on which VCW relies. In both Glass and International
Brotherhood of Teamsters, the arbitrators clarified an award prior to district court
review. See International Bhd. of Teamsters, 109 F.3d at 1410; Glass, 56 F.3d at 845-
46. In this case, the arbitration panel clarified the award after the district court acted
on the award. VCW has not cited any case in which the functus officio doctrine was
not applied after the district court vacated or confirmed the final award. VCW's failure
to cite such a case is not surprising because such a result would effectively grant an
arbitration panel power to conduct appellate review of a federal district court decision.
This would be absurd. Thus, we reject VCW's argument that this case falls within an
exception to the functus officio doctrine.

      B.     The District Court Decision to Vacate in Part and Confirm in Part

       VCW argues, and we agree, that the district court erred when it used section 10
of the FAA to vacate in part and confirm in part the arbitration panel's first order. We
review de novo a district court's decision to vacate an arbitration award. See Executive
Life Ins. Co. v. Alexander Ins. Ltd., 999 F.2d 318, 320 (8th Cir. 1993).

       The FAA creates only two avenues for attacking an arbitration award. Under
section 10, a district court may vacate an award; under section 11, a district court may
modify an award. Section 10 allows a district court to vacate an arbitration award
when: the award was procured by corruption; the arbitrators had a conflict of interest;
the arbitrators committed prejudicial misconduct in refusing to postpone a hearing or
in refusing to hear material evidence; or the arbitrators exceeded their powers. See 9
U.S.C. § 10. Section 11 allows a district court to modify an arbitration award when:
an award contains an evident material miscalculation or misdescription; an award was
made by the arbitrators in a matter not submitted to them; or an award is imperfect in
form. See 9 U.S.C. § 11. In this case, the district court, applying section 10, decided


                                           -5-
to vacate in part and confirm in part the award because it determined that the arbitration
panel exceeded its authority in arbitrating the letters of credit issue.

       While this determination is of concern to us, we make no finding at this time as
to whether the district court was correct. Under the conditions of this appeal, we need
not reach the question of panel authority.

       Our review of the initial arbitration order convinces us that the arbitration panel
intended the award of premiums to be indivisible from the award on the letters of
credit. Whatever the rule may be under different circumstances, when a panel by the
language it uses makes clear that it intends its award to be indivisible, the district court
must take the award as it finds it and either vacate the entire award using section 10 or
modify the award using section 11.5 Moreover, in this instance, to vacate only a
portion of the award would result in an unintended windfall in favor of Legion.
Because the district court erred when it decided to vacate only part of the award using
section 10 and did not determine whether the award could be modified using section
11, we remand for further consideration of the dispute.



III.   CONCLUSION




       5
        Our precedents are somewhat unclear as to whether a district court may ever
partially vacate an award using the standards of section 10. See Centralab, Inc. v.
Local No. 816, Int'l Union of Elec., Radio and Machine Workers, 827 F.2d 1210 (8th
Cir. 1987) (upholding a district court that used section 10 to vacate one part and
confirm another part of an arbitration award); UHC Mgmt. Co. v. Computer Sciences
Corp., 148 F.3d 992 (8th Cir. 1998) (holding that section 11 applies when a litigant
seeks to have part of an arbitration award nullified and part of an award confirmed).
Because the arbitration panel was explicit in its intent to make an indivisible award, we
need not decide all the components of this issue today.

                                            -6-
      Accordingly, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.

     A true copy.

           Attest:

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




                                     -7-
