5 U.S.C. § 577 — Arbitrators

Page 162 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 575 Editorial Notes CODIFICATION Section 574 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2255 of Title 7, Agriculture. Section 574a of former Title 5, Executive Depart- ments and Government Officers and Employees, was transferred to section 2226 of Title 7. PRIOR PROVISIONS A prior section 574 was renumbered section 594 of this title. AMENDMENTS 1996—Subsecs. (a), (b). Pub. L. 104–320, § 3(a), in intro- ductory provisions struck out ‘‘any information con- cerning’’ after ‘‘be required to disclose’’. Subsec. (b)(7). Pub. L. 104–320, § 3(b), amended par. (7) generally. Prior to amendment, par. (7) read as follows: ‘‘the dispute resolution communication was provided to or was available to all parties to the dispute resolution proceeding’’. Subsec. (d). Pub. L. 104–320, § 3(c), designated existing provisions as par. (1) and added par. (2). Subsec. (j). Pub. L. 104–320, § 3(d), amended subsec. (j) generally. Prior to amendment, subsec. (j) read as fol- lows: ‘‘This section shall not be considered a statute specifically exempting disclosure under section 552(b)(3) of this title.’’ 1992—Pub. L. 102–354 renumbered section 584 of this title as this section. § 575. Authorization of arbitration (a)(1) Arbitration may be used as an alter- native means of dispute resolution whenever all parties consent. Consent may be obtained either before or after an issue in controversy has aris- en. A party may agree to— (A) submit only certain issues in con- troversy to arbitration; or (B) arbitration on the condition that the award must be within a range of possible out- comes. (2) The arbitration agreement that sets forth the subject matter submitted to the arbitrator shall be in writing. Each such arbitration agree- ment shall specify a maximum award that may be issued by the arbitrator and may specify other conditions limiting the range of possible outcomes. (3) An agency may not require any person to consent to arbitration as a condition of entering into a contract or obtaining a benefit. (b) An officer or employee of an agency shall not offer to use arbitration for the resolution of issues in controversy unless such officer or em- ployee— (1) would otherwise have authority to enter into a settlement concerning the matter; or (2) is otherwise specifically authorized by the agency to consent to the use of arbitra- tion. (c) Prior to using binding arbitration under this subchapter, the head of an agency, in con- sultation with the Attorney General and after taking into account the factors in section 572(b), shall issue guidance on the appropriate use of binding arbitration and when an officer or em- ployee of the agency has authority to settle an issue in controversy through binding arbitra- tion. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 585; renumbered § 575, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 8(c), Oct. 19, 1996, 110 Stat. 3872.) Editorial Notes CODIFICATION Section 575 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2259 of Title 7, Agriculture. PRIOR PROVISIONS A prior section 575 was renumbered section 595 of this title. AMENDMENTS 1996—Subsec. (a)(2). Pub. L. 104–320, § 8(c)(1), (2), sub- stituted ‘‘The’’ for ‘‘Any’’ and inserted at end ‘‘Each such arbitration agreement shall specify a maximum award that may be issued by the arbitrator and may specify other conditions limiting the range of possible outcomes.’’ Subsec. (b). Pub. L. 104–320, § 8(c)(3), in introductory provisions substituted ‘‘shall not offer to use arbitra- tion for the resolution of issues in controversy unless’’ for ‘‘may offer to use arbitration for the resolution of issues in controversy, if’’, and in par. (1) substituted ‘‘would otherwise have authority’’ for ‘‘has authority’’. Subsec. (c). Pub. L. 104–320, § 8(c)(4), added subsec. (c). 1992—Pub. L. 102–354 renumbered section 585 of this title as this section. § 576. Enforcement of arbitration agreements An agreement to arbitrate a matter to which this subchapter applies is enforceable pursuant to section 4 of title 9, and no action brought to enforce such an agreement shall be dismissed nor shall relief therein be denied on the grounds that it is against the United States or that the United States is an indispensable party. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 586; renumbered § 576, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.) Editorial Notes CODIFICATION Section 576 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2260 of Title 7, Agriculture, and subse- quently repealed by Pub. L. 107–171, title X, § 10418(a)(3), May 13, 2002, 116 Stat. 507. PRIOR PROVISIONS A prior section 576 was renumbered section 596 of this title. AMENDMENTS 1992—Pub. L. 102–354 renumbered section 586 of this title as this section. § 577. Arbitrators (a) The parties to an arbitration proceeding shall be entitled to participate in the selection of the arbitrator. (b) The arbitrator shall be a neutral who meets the criteria of section 573 of this title. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 587; renumbered § 577 and amended Pub. L. 102–354, § 3(b)(2), (3), Aug. 26, 1992, 106 Stat. 944, 945.) Editorial Notes AMENDMENTS 1992—Pub. L. 102–354, § 3(b)(2), renumbered section 587 of this title as this section. Page 163 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 580 Subsec. (b). Pub. L. 102–354, § 3(b)(3), substituted ‘‘sec- tion 573’’ for ‘‘section 583’’. § 578. Authority of the arbitrator An arbitrator to whom a dispute is referred under this subchapter may— (1) regulate the course of and conduct arbi- tral hearings; (2) administer oaths and affirmations; (3) compel the attendance of witnesses and production of evidence at the hearing under the provisions of section 7 of title 9 only to the extent the agency involved is otherwise au- thorized by law to do so; and (4) make awards. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 588; renumbered § 578, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.) Editorial Notes AMENDMENTS 1992—Pub. L. 102–354 renumbered section 588 of this title as this section. § 579. Arbitration proceedings (a) The arbitrator shall set a time and place for the hearing on the dispute and shall notify the parties not less than 5 days before the hear- ing. (b) Any party wishing a record of the hearing shall— (1) be responsible for the preparation of such record; (2) notify the other parties and the arbi- trator of the preparation of such record; (3) furnish copies to all identified parties and the arbitrator; and (4) pay all costs for such record, unless the parties agree otherwise or the arbitrator de- termines that the costs should be apportioned. (c)(1) The parties to the arbitration are enti- tled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing. (2) The arbitrator may, with the consent of the parties, conduct all or part of the hearing by telephone, television, computer, or other elec- tronic means, if each party has an opportunity to participate. (3) The hearing shall be conducted expedi- tiously and in an informal manner. (4) The arbitrator may receive any oral or doc- umentary evidence, except that irrelevant, im- material, unduly repetitious, or privileged evi- dence may be excluded by the arbitrator. (5) The arbitrator shall interpret and apply relevant statutory and regulatory requirements, legal precedents, and policy directives. (d) No interested person shall make or know- ingly cause to be made to the arbitrator an un- authorized ex parte communication relevant to the merits of the proceeding, unless the parties agree otherwise. If a communication is made in violation of this subsection, the arbitrator shall ensure that a memorandum of the communica- tion is prepared and made a part of the record, and that an opportunity for rebuttal is allowed. Upon receipt of a communication made in viola- tion of this subsection, the arbitrator may, to the extent consistent with the interests of jus- tice and the policies underlying this subchapter, require the offending party to show cause why the claim of such party should not be resolved against such party as a result of the improper conduct. (e) The arbitrator shall make the award with- in 30 days after the close of the hearing, or the date of the filing of any briefs authorized by the arbitrator, whichever date is later, unless— (1) the parties agree to some other time limit; or (2) the agency provides by rule for some other time limit. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 589; renumbered § 579, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.) Editorial Notes AMENDMENTS 1992—Pub. L. 102–354 renumbered section 589 of this title as this section. § 580. Arbitration awards (a)(1) Unless the agency provides otherwise by rule, the award in an arbitration proceeding under this subchapter shall include a brief, in- formal discussion of the factual and legal basis for the award, but formal findings of fact or con- clusions of law shall not be required. (2) The prevailing parties shall file the award with all relevant agencies, along with proof of service on all parties. (b) The award in an arbitration proceeding shall become final 30 days after it is served on all parties. Any agency that is a party to the proceeding may extend this 30-day period for an additional 30-day period by serving a notice of such extension on all other parties before the end of the first 30-day period. (c) A final award is binding on the parties to the arbitration proceeding, and may be enforced pursuant to sections 9 through 13 of title 9. No action brought to enforce such an award shall be dismissed nor shall relief therein be denied on the grounds that it is against the United States or that the United States is an indispensable party. (d) An award entered under this subchapter in an arbitration proceeding may not serve as an estoppel in any other proceeding for any issue that was resolved in the proceeding. Such an award also may not be used as precedent or oth- erwise be considered in any factually unrelated proceeding, whether conducted under this sub- chapter, by an agency, or in a court, or in any other arbitration proceeding. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2743, § 590; renumbered § 580 and amended Pub. L. 102–354, §§ 3(b)(2), 5(b)(3), Aug. 26, 1992, 106 Stat. 944, 946; Pub. L. 104–320, § 8(a), Oct. 19, 1996, 110 Stat. 3872.) Editorial Notes AMENDMENTS 1996—Subsec. (c). Pub. L. 104–320, § 8(a), redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: ‘‘The head of any agency that is