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MINUTES OF MEETING OF THE CLAIMS AGAINST THE GOVERNMENT SECTION Participants: Jeff Senger, DOJ
Mr. Steenland and Mr. Senger welcomed the participants and discussed the agenda for the meeting. Mr. Flanigan described the pilot arbitration program he is working on for the FDIC. It involves using binding arbitration to resolve contract claims of $1 million or less. FDIC is planning a one-year pilot with 10-15 cases. Either side can request arbitration, and either side can also refuse. Mark believes the program will be particularly helpful in resolving cases where the litigation costs would be higher than the claim itself. FDIC plans to put together a roster of neutrals including personnel from the Contracts Boards of Appeals, the AAA, JAMS/Endispute, and others, and they will require experience in handlingcontracting matters. The group then discussed an outline for the proposed Interagency Pilot Arbitration program. The group recommends that the pilot cover a variety of monetary claims, not just FTCA matters. We will further review the issue of whether there should be a uniform cap on arbitration awards applying to all agencies, or whether the cap on awards should differ among agencies depending on the agency's authorized settlement limit. The amount of the cap(s) also remains to be decided. The group agreed the government should retain its ability to file cross-claims. The group recommends that the arbitrators be instructed to use the same substantive rules of decision that would apply in a federal court. Procedural rules will be drafted. Under the ADRA, arbitrators may compel the attendance of witnesses and production of evidence at the hearing only to the extent the agency involved is otherwise authorized by law to do so. The group agreed that a single arbitrator should handle each case. A pool of arbitrators can be developed from contract services, retired federal employees, and other sources. Written decisions are required by the ADRA, although formal findings of fact and conclusions of law are not required. Rules for internal screening of cases will be decided agency-by-agency. Plaintiffs will be required to waive all relevant claims in order to participate in the program. We will develop a standard arbitration agreement. Evaluation will be an important part of the pilot program, including satisfaction studies of parties, time to completion, and other case tracking information. Participating agencies may be able to decide whether to permit non-attorneys to represent parties and whether the program will take place only in Washington or in other regions. The overall goal of the program will be to provide a swift, inexpensive, and more informal alternative to pursuing monetary claims against the government. Pete and Jeff will do further research on outstanding issues, and the group will meet again to further develop the proposal.
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