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