observing that court must “guard against an agency . . . drawing inferences that are arbitrary in relation to the facts found, no matter how substantial may be the support for those facts” (internal quotation marks and citations omitted)
How later courts described this case
- observing that court must “guard against an agency . . . drawing inferences that are arbitrary in relation to the facts found, no matter how substantial may be the support for those facts” (internal quotation marks and citations omitted)
- describing the test for evident 6 partiality as being "whether an objective, disinterested 7 observer" would conclude that the arbitrator was biased (emphasis 8 added)
- describing the test for evident partiality as being “whether an objective, disinterested observer” would conclude that the arbitrator was biased (emphasis added)
- explaining that “evident partiality” does not require “actual partiality”
Written by the judges who cited it.
The opinion
JACOBS, Circuit Judge,
concurring:
I fully concur in the opinion of the Court, and I write separately to expand briefly on why I believe we are compelled to specify which legal standard governs the recusal issue in this case and why having done so, we are unable to affirm summarily.
The record contains an article from Time magazine that describes a letter from Independent Review Board (IRB) member Frederick B. Lacey to Thomas Puccio, a court-appointed trustees of a Teamsters local. According to Time, the letter warns Puccio against disclosing, during a teamsters election campaign, information that allegedly tied then-Teamsters President Ron Carey to organized crime. As quoted in Time, Lacey advised Puccio to keep “in mind what would happen if you brought Carey down in that there were ‘old guard’ Teamsters throughout the country that were hoping that Carey would be eliminated as a candidate in 1996 so that the clock could be turned back to what it was when I first came on the scene as Independent Administrator.” This report (if true) is unsettling because the letter is partisan in an election in which Lacey has no vote and should have no candidate.
News reports are of no moment, but at oral argument I asked counsel for the IRB whether Lacey denied having written the letter. The answers given, though evasive, were consistent with a concession that such a letter was sent.
In light of that letter, and the fact that the report of it is not disclaimed, it matters (unfortunately) which of several standards of recusal governs members of the IRB. On the one hand, it is clear enough that if the standard for federal judicial officers were applied, Lacey would have had to recuse himself. It is also clear as a matter of law that the IRB does not have the latitude that is permitted to a Teamsters president, and that the lax standard of recusal for such official should not have been applied. We are then left with an intermediate standard that governs the recusal of arbitrators: evident partiality. I am unwilling to say as a matter of law that Lacey’s recusal is not required under that standard.
*148 Under the circumstances, Giacumbo could reasonably believe that an IRB member who would urge suppression of information adverse to Carey in an election might condemn Giacumbo for a small collection of petty offenses as part of an effort to rid the union of elements antagonistic to Carey. Whether that is so or not — and on the whole, I doubt it — is a question we cannot fairly decide as a matter of law.
In light of the deference that we have in the past extended to Lacey’s judgment and prestige, our inability to affirm summarily under the highest standard of impartiality, or the intermediate one, is a depressant.