Kiran Dewan, CPA, P.A. v. Arun Walia

Vacated and remanded by unpublished PER CURIAM opinion. Judge Wynn wrote a dissenting opinion.

Unpublished opinions are not binding precedent in this circuit.

Kiran Dewan and his close corporation, Kiran M. Dewan, CPA, P.A. (“the Company”) (collectively, “Appellants”), appeal from the district court’s confirmation of an arbitral award in favor of the Company’s former employee, Appellee Arun Walia. Walia came to the United States from Canada in 2003 on an employment visa to work for the Company as an accountant.1 By 2009, the parties agreed to a parting of the ways, in connection with which Walia executed a broadly worded Release Agreement (“the Release”) in consideration for the Company’s payment of $7,000.

The parting proved less than amicable. In January 2010, Appellants filed a demand for arbitration against Walia, alleging that Walia breached the noncom-petition/nonsolicitation provisions in his employment agreement. Despite the Release, Walia asserted numerous counterclaims in the arbitral forum, primarily alleging that the Company had underpaid him during his employment and that Appellants had run afoul of federal immigration law attendant to the visa program. The Arbitrator found in favor of Walia on Appellants’ original claims. She also concluded, however, that the Release was valid and enforceable, but nevertheless made a substantial monetary award in Walia’s favor, holding Appellants jointly and severally liable.

In due course, the parties filed opposing petitions to vacate and to confirm/enforce the award in federal district court. The district court confirmed the award and granted Walia’s motion for attorney’s fees and costs.

For the reasons that follow, we hold that the award in favor of Walia is the product of a manifest disregard of the law by the Arbitrator. Accordingly, we vacate the judgment and remand to the district court with instructions to vacate the award.

I.

A.

Walia, a Canadian national, came to the United States in 2003 on an employment visa to work for the Company as an accountant. He entered into a three-year employment agreement. In 2006, Walia and the Company entered into a second three-year employment agreement (“the 2006 Employment Agreement”) extending through March 23, 2009. The 2006 Employment Agreement included nonsolicitation and noncompetition provisions, as well as a broad arbitration provision. Dewan signed it in his capacity as president of the Company.

In February and March 2009, Walia underwent treatment for thyroid cancer. On approximately March 14, 2009 (as the termination date for the 2006 Employment Agreement approached), the Company’s office manager, Veena Sindwani (who was also Dewan’s wife), went to the intensive care unit to see Walia. The parties dispute the events occurring in the hospital. Walia contended (and the Arbitrator later found) that Sindwani presented him with a new employment agreement, which he signed. Appellants contended that no such agreement existed.

In any event, Walia continued to work for the Company through at least August 21, 2009. The parties vigorously dispute *242the circumstances surrounding the termination of Walia’s employment. This much is undisputed: Though no termination letter was ever sent to Walia, on November 3, 2009, Walia executed the Release, which “release[d] and discharge^]” Appellants from claims related to Walia’s employment in exchange for $7,000. J.A. 250-52.2 The Release provided for “binding arbitration” should a dispute arise concerning the Release or its performance. J.A. 251. As with the 2006 Employment Agreement, Dewan signed it in his capacity as president of the Company.

B.

Less than three months after Walia executed the Release, on January 29, 2010, Dewan initiated arbitration proceedings against Walia with the American Arbitration Association. Dewan asserted that Walia “breached an employment agreement by competing with and soliciting the clients of the employer,” and “breached a settlement and release agreement by making various claims against the Employer (Claimant).” J.A. 21.3

Walia asserted several counterclaims. He alleged, among other things, that (1) based on his years of accounting experience he was underpaid (in apparent violation of the relevant immigrant work visa regulations) during his time at the Company; (2) the Company breached the profit-sharing terms of the 2006 Employment Agreement; and (3) Dewan, Walia’s immigration attorney of record, fraudulently sought to withdraw Walia’s employment authorization.

The Arbitrator conducted four days of hearings in 2011 and issued a so-called interim award (“the Interim Award”) in Walia’s favor. The Arbitrator found, among other things, that

(1) no cognizable claims survived the employment agreements from 2003 and 2006 based on the applicable statute of limitations;

(2) “there' [was] a viable Employment Agreement drafted by [Dewan] and signed by [Walia] on March 14, 2009 [during the hospital visit],” which Dewan had simply refused to produce;

(3) “NO termination letter was ever sent” by Dewan, and therefore the employment relationship continued through the date of the arbitration proceedings;

(4) Dewan’s claims that Walia solicited the Company’s clients and used the Company’s confidential materials in an unauthorized manner were “baseless”;

(5) Walia “voluntarily” signed the Release and thereafter negotiated checks totaling the $7,000 paid by Dewan for the Release, and Walia was therefore “legally bound” by the Release to the extent that it barred “all tort and contractual claims in federal or state courts as well as attorney’s fees”;

(6) the continuing “employment relationship” allowed for an award of compensatory damages stretching back to 2003 despite the bar of the statute of limitations;

(7) punitive damages were justified because Dewan “purposefully harmed” Walia’s immigration interest by failing to tell Walia prior to withdrawing the Company’s sponsorship of him as required by federal law, and because Wa-*243lia “had to defend himself’ against Appellants’ “baseless claims”;

(8) tax returns that Dewan provided in discovery were significantly different than those Dewan submitted to the U.S. Department of Labor (“the DOL”);

(9) the statutory remedies for failure to pay prevailing wages under the Immigration and Nationality Act (“INA”) were not exclusive, and the Arbitrator could order damages based on a violation of the INA; and

(10) the Arbitrator had given the award “interim” status to “await ... guidance in this case from DOL’s investigation” of Appellants.

J.A. 60-69.

On November 18, 2011, the Arbitrator issued a final award (“the Final Award”). The Arbitrator first recounted a series of developments since the Interim Award. These included a finding that Dewan “was a party to fraud” based on the differences between documents obtained by Walia through FOIA requests and documents provided in discovery. J.A. 189. The Arbitrator then awarded Walia $387,108.20 in compensatory damages and $70,000 in punitive damages, and found that Dewan and the Company were jointly and severally liable for the combined $457,108.20.

On December 16, 2012, Appellants filed an amended complaint in their previously filed federal court action challenging the Final Award.4 Eventually thereafter, Wa-lia filed a petition to confirm and enforce the Final Award.

The district court first denied Appellants’ petition to vacate the Final Award. Kiran M. Dewan, CPA, P.A. v. Walia, 2012 WL 3156839 (D.Md. Aug. 3, 2012). The court noted its severely circumscribed role in reviewing an arbitration award, and the limited grounds for vacating such an award. The court stated that Appellants’ federal-court claims “are almost identical to the ones presented before the arbitration tribunal,” and that in bringing the claims Appellants “[essentially ... have asked [the court] to second-guess the well-reasoned award....” Id. at *9. The court concluded that there was “substantial support for the decisions made by the arbitrator, that the arbitrator did not go beyond the scope of the submissions, and that the arbitrator’s determinations were not arbitrary.” Id. at *10. The court further concluded that Appellants did not “meet their heavy burden of proof with respect to *244any of the applicable grounds to vacate an arbitration award under the MUAA.” Id.

Appellants filed a motion for reconsideration. The district court issued a memorandum order denying that motion and granting Walia’s petition to confirm and enforce the award. Kiran M. Dewan, CPA, P.A. v. Walia, 2012 WL 4356783 (D.Md. Sept. 21, 2012). On October 16, 2012, the court granted Walia’s motion for attorney’s fees and costs. Kiran M. Dewan, CPA, P.A. v. Walia, 2012 WL 4963827 (D.Md. Oct. 16, 2012).

Appellants timely noticed this appeal.

II.

A.

On appeal from the district court’s evaluation of an arbitral award, “[w]e review the district court’s findings of fact for clear error and its conclusions of law, including its decision to vacate [or confirm] an arbitration award, de novo.” Raymond James Fin. Servs., Inc. v. Bishop, 596 F.3d 183, 190 (4th Cir.2010).

B.

As an initial matter, we must determine what body of law controls the resolution of this appeal. The parties’ arguments are all based on the MUAA, Maryland’s analogue to the Federal Arbitration Act (“the FAA”), 9 U.S.C. § 1 et seq. The district court acquiesced in the parties’ invocation of the MUAA. At oral argument before us, however, the parties were unable to explain why the FAA should not control.

The FAA “supplies not simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration.” Preston v. Ferrer, 552 U.S. 346, 349, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008). Under § 2 of the FAA, “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... 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.

The Supreme Court has

interpreted the term “involving commerce” in the FAA as the functional equivalent of the more familiar term “affecting commerce”- — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power. Because the statute provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause,” ... it is perfectly clear that the FAA encompasses a wider range of transactions than those actually “in commerce” — that is, “within the flow of interstate commerce.”

Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) (internal citations omitted). Commerce includes foreign commerce. See Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir.2002) (noting that a litigant can compel arbitration under the FAA if able to demonstrate, among other things, “the relationship of the transaction ... to interstate or foreign commerce.... ”). The relevant transactions here are the nonimmigrant employment application process leading to, and the ultimate execution by the parties of, the 2003 and 2006 employment contracts, and, as well, the execution in 2009 of the Release by Walia, a Canadian national. Subject matter jurisdiction plainly exists because Walia is a Canadian national, but “diversity of citizenship — or lack thereof — is not by itself enough to determine the nature of a transaction .... ” Rota-McLarty v. Santander *245Consumer USA, Inc., 700 F.3d 690, 697 (4th Cir.2012). Here, though, the transactions involving the employment of a Canadian national by an American company pursuant to federal immigration law clearly involved foreign commerce.

The Release states that it “shall be construed and enforced in accordance with the laws of the State of Maryland,” J.A. 251, and the 2006 Employment Agreement states that it “shall be governed by and construed according to the laws of the State of Maryland applicable to agreements to be wholly performed therein,” J.A. 248. But “a contract’s general choice-of-law provision does not displace federal arbitration law if the contract involves interstate [or foreign] commerce.” Rota-McLarty, 700 F.3d at 698 n. 7; see also Porter Hayden Co. v. Century Indem. Co., 136 F.3d 380, 383 (4th Cir.1998) (finding that a similar choice-of-law provision could “reasonably be read merely as specifying that Maryland substantive law be applied to resolve disputes arising out of the contractual relationship,” and “absent a clearer expression of the parties’ intent to invoke state arbitration law, we will presume that the parties intended federal arbitration law to govern the construction of the Agreement’s arbitration clause”). The term “evidencing a transaction” in § 2 of the FAA “requires only that the transaction in fact involved interstate commerce, not that the parties contemplated it as such at the time of the agreement.” Rota-McLarty, 700 F.3d at 697.

In short, because the employment contracts and the Release evidence and arise out of transactions involving foreign commerce, we hold that the FAA controls.

III.

Appellants argue, among other things, that the arbitration award must be vacated because it is the product of the Arbitrator’s manifest disregard of the law. Specifically, they contend that the Arbitrator could not find the Release valid and enforceable but nevertheless make an award to Walia on claims arising out of his employment with the Company. We are constrained to agree.

“Judicial review of an arbitration award in federal court is ‘substantially circumscribed.’ ” Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 527 (4th Cir.2007) (citation omitted). In fact, “ ‘the scope of judicial review for an arbitrator’s decision is among the narrowest known at law because to allow full scrutiny of such awards would frustrate the purpose of having arbitration at all — the quick resolution of disputes and the avoidance of the expense and delay associated with litigation.’ ” MCI Constructors, LLC v. City Of Greensboro, 610 F.3d 849, 857 (4th Cir.2010) (quoting Three S Del., 492 F.3d at 527). “In order for a reviewing court to vacate an arbitration award, the moving party must sustain the heavy burden of showing one of the grounds specified in the [FAA] or one of certain limited common law grounds.” Id.

The grounds specified in the FAA are: “(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct ...; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a).

“The permissible common law grounds for vacating such an award ‘include those circumstances where an award fails to draw its essence from the contract, or the award evidences a manifest disregard of *246the law.’ ” MCI Constructors, 610 F.3d at 857 (citation omitted).5 “Under our precedent, a manifest disregard of the law is established only where the ‘arbitrator[ ] understand^] and correctly state[s] the law, but proceed[s] to disregard the same.’” Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 235 (4th Cir.2006) (citation omitted). Merely misinterpreting contract language does not constitute a manifest disregard of the law. Id. An arbitrator may not, however, disregard or modify unambiguous contract provisions. Id. “Moreover, an award fails to draw its essence from the agreement if an arbitrator has ‘based his award on his own personal notions of right and wrong.’ ... In such circumstances, a federal court has ‘no choice but to refuse enforcement of the award.’ ” Id. (citations omitted).

Here, Walia agreed to “release and discharge” Appellants from claims related to Walia’s employment in exchange for $7,000. J.A. 250-52. The expansive breadth and scope of the Release are plainly reflected in its plain language, which we set forth in full:

3. Release. EMPLOYEE, on behalf of himself and his representatives, spouse, agents, heirs and assigns releases and discharges COMPANY and COMPANY’S former, current or future officers, employees, representatives, agents, fiduciaries, attorneys, directors, shareholders, insurers, predecessors, parents, affiliates, benefit plans, successors, heirs, and assigns from any and all claims, liabilities, causes of action, damages, losses, demands or obligations of every kind and nature, whether now known or unknown, suspected or unsuspected, which EMPLOYEE ever had, now has, or hereafter can, shall or may have for, upon or by reason of any act, transaction, practice, conduct, matter, cause or thing or any kind whatsoever, relating to or based upon, in whole or in part, any act, transaction, practice or conduct pri- or to the date hereof, including but not limited to matters dealing with EMPLOYEE’S employment or termination of employment with the COMPANY, or which relate in any way to injuries or damages suffered by EMPLOYEE (knowingly or unknowingly). This release and discharge includes, but is not limited to, claims arising under federal, state and local statutory or common law, including, but not limited to, the Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights Act of 1964, claims for wrongful discharge under any public policy or any policy of the COMPANY, claims for breach of fiduciary duty, and the laws of contract and tort; and any claim for attorney’s fees. EMPLOYEE promises never to file a lawsuit or .assist in or commence any action asserting any claims, losses, liabilities, demands, or obligations released hereunder.

4. Known or Unknown Claims. The parties understand and expressly agree that this AGREEMENT extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or attributable to any conduct of the COM*247PANY and its successors, subsidiaries, and affiliates, and all their employees, owners, shareholders, agents, officers, directors, predecessors, assigns, agents, representatives, and attorneys, whether known by EMPLOYEE or whether or not EMPLOYEE believes he may have any claims and that any and all rights granted to EMPLOYEE under the Annotated Code of Maryland or any analogous state law or federal law or regulations, are hereby expressly WAIVED.

J.A. 250-51. As noted above, the Release provided for “binding arbitration” should a dispute arise concerning the Release or its performance. J.A. 251.

In the Interim Award, the Arbitrator rejected Walia’s argument that the Release was unconscionable. She then found that Walia

knew he was signing a release and chose to sign it. However, he did not know the legal consequences nor the significance of his signature. However, he voluntarily signed it but without consulting an attorney and is now legally bound. Accordingly, all [Walia’s] rights for all tort and contractual claims in federal or state courts as well as attorney’s fees are now waived.

J.A. 66. The Arbitrator also found that Walia had negotiated the checks “for the composite amount of the Release.... ” J.A. 66; see also J.A. 69 (“All claims involving Solicitation, Covenant not to Compete and unauthorized release of Confidential Data from the Claimant’s CPA firm are dismissed except for the valid execution of the Release (2009) based on Maryland law. Accordingly, [Walia] is precluded from bringing all tort and contractual claims in state and federal courts as well as being precluded from receiving attorney’s fees.”); J.A. 190 (same, in Final Award).

In sum, the Arbitrator appears to have concluded that the Release sufficed to extinguish Walia’s common law and state and federal statutory claims if they were brought in state or federal court, but did not extinguish some or all of such claims if they were brought in an arbitral forum. We find untenable the Arbitrator’s attempt to parse the language of the Release so finely.

We agree with Appellants that in purporting to construe “the release and waiver provision to apply only to tort and contractual claims Walia might file in federal or state court,” the Arbitrator “rewr[ote] the release, which expressly ‘includes, but is not limited to, claims arising under federal, state and local statutory or common law,’ and imposes no qualifications whatsoever concerning the forum in which those released claims could have been brought.” Appellants’ Br. at 37. We have no doubt that Maryland law accords with Appellants’ contentions. See Herget v. Herget, 319 Md. 466, 573 A.2d 798, 801 (1990) (stating that a broad settlement agreement purporting to release all claims, whether known or unknown, is enforceable); Bernstein v. Kapneck, 290 Md. 452, 430 A.2d 602, 606 (1981).6

*248The Arbitrator’s finding that the Release was valid and enforceable forecloses all of Walia’s arguments on appeal that the Release was unconscionable.7 We do not know how the Arbitrator reached her interpretation of the Release. However, it is clear to us that neither linguistic gymnastics, nor a selective reading of Maryland contract law, could support her conclusion that the Release was enforceable but that Walia’s claims were arbitrable anyway.

Objectively viewed, the language of the Release could not be more expansive, clear, or unambiguous. The plain language of the Release fatally undermines the suggestion that Walia retained the right to bring any of his counterclaims in arbitration. The Release waived all claims stemming from his employment relationship with the Company, regardless of forum. Accordingly, we hold that the Arbitrator manifestly disregarded the law by holding the Release valid and enforceable but nevertheless arbitrating Walia’s counterclaims arising out of his employment with the Company.8

IV.

For the reasons set forth, we vacate the judgment and remand with instructions that the district court vacate the award.

VACATED AND REMANDED.