United States v. Bankers Insurance Company

245 F.3d 315, 2001 U.S. App. LEXIS 4924, 2001 WL 293669
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 27, 2001
Docket00-1342
StatusPublished
Cited by114 cases

This text of 245 F.3d 315 (United States v. Bankers Insurance Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bankers Insurance Company, 245 F.3d 315, 2001 U.S. App. LEXIS 4924, 2001 WL 293669 (4th Cir. 2001).

Opinions

Reversed and remanded by published opinion. Judge King wrote the opinion, in which Judge Widener joined. Judge Seymour wrote an opinion concurring in part and dissenting in part.

OPINION

KING, Circuit Judge:

This appeal arises from a civil suit initiated by the Government in November 1999 in the District of Maryland, on behalf of the Federal Emergency Management Agency (“FEMA”), against Bankers Insurance Company. In its Complaint, the Government asserts three common law theories of recovery, plus a separate statutory claim under the False Claims Act, 31 U.S.C. §§ 3729-3733 (“FCA”). Bankers sought to stay the litigation proceedings pending arbitration, but the district court denied its stay request. Bankers has appealed the district court’s ruling pursuant to 9 U.S.C. § 16(a)(1)(A) (authorizing interlocutory appeals to review denials of motions to stay proceedings pending arbitration). For the reasons explained below, we reverse and remand.

I.

A.

Bankers is a private insurance company that sells and administers flood insurance policies through the National Flood Insurance Program (“NFIP”).1 In 1983, the Federal Insurance Administration (“FIA”), which is charged by FEMA with administration of the NFIP, see 44 C.F.R. § 2.31 (1999), established the Write-Your-Own (‘WYO”) program, under which commercial insurance companies sell and administer flood insurance policies to the public. See 44 C.F.R. § 62.23 (1999). Bankers has been a participant (an “insurer” and a “WYO Company”) in the WYO program since its inception, when Bankers entered into a Financial Assistance/Subsidy Arrangement (“Arrangement”) with FEMA [318]*318and the FIA. According to the Complaint, Bankers and the Government renewed the Arrangement annually from 1984 until 1997. The Arrangement, which tracks a form agreement promulgated and mandated by FEMA in the Code of Federal Regulations, governs the terms and conditions of all WYO program insurers in their sale and administration of federal flood insurance. See 44 C.F.R. § 62 app. A. Of significance to this appeal, both the Arrangement and the C.F.R. form agreement contain the following arbitration provision:

Article VIII — Arbitration

If any misunderstanding or dispute arises between the Company [Bankers] and the FIA with reference to any factual issue under any provisions of this Arrangement ... such misunderstanding or dispute may be submitted to arbitration for a determination [that] shall be binding upon approval by the FIA.

Id. and J.A. 42.

In its Complaint, the Government has sued Bankers for a variety of alleged contract breaches stemming from a course of conduct beginning in fiscal year 1989 and lasting until September 1997. The Complaint asserts, inter alia, that Bankers failed to turn over to the Government all interest earned on NFIP funds under the Arrangement, and also that Bankers failed to provide the FIA with true and accurate information regarding administration of the NFIP and the interest earned on NFIP funds. The four bases for recovery embodied in the Complaint are: violation of the False Claims Act (Count I), breach of contract (Count II), negligent misrepresentation (Count III), and unjust enrichment (Count IV).2 Bankers responded to the Complaint by filing its motion to stay the proceedings pending arbitration under Article VIII of the Arrangement. The district court, by letter opinion of March 14, 2000 (the “Order”), denied the stay request and allowed the Government’s suit to proceed without arbitration of its claims.

In the Order, the district court correctly observed that, “as a general proposition, there is a ‘heavy presumption of arbitrability.’ ” Order, at 1 (citing American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 92 (4th Cir.1996)). The court ruled, however, that traditional principles governing arbitration have no application to a “suit brought by a federal agency asserting, inter alia, a claim under the False Claims Act.” Order, at 1. While this appeal appears to present a question of first impression — whether the existence of an FCA claim precludes arbitration of a contract dispute involving the Government — we address this issue with substantial guidance. The federal courts have on numerous occasions spoken on issues relating to arbitration and the obligations of the Government when it enters into contracts with private parties.

B.

Bankers advances several contentions in support of its position that the arbitration provision contained in the Arrangement is binding in this case. First, Bankers asserts that the applicable authorities prescribe that arbitration clauses similar to that in this case — clauses that speak permissively (i.e., “may be submitted to arbitration”) — are in fact typically construed as mandatory arbitration clauses. Second, Bankers contends that the district court [319]*319erred when it ignored the “heavy presumption of arbitrability” simply because this litigation involves the assertion of an FCA claim. Finally, Bankers stresses that, since all claims in the Complaint arise from the Arrangement, each (including the FCA claim) must be submitted to arbitration pursuant to the arbitration agreement.

The Government counters by echoing the reasoning of the district court, and it revives an argument presented to — but not addressed by — the court below: sovereign immunity. The Government contends that sovereign immunity precludes application of the arbitration agreement absent the Government’s current consent to arbitrate. Additionally, the Government’s opposition to arbitration is premised on the permissive nature of the arbitration provision and the NFIA’s specific statutory prohibition against binding arbitration.3 Finally, the Government asserts that since the Attorney General was not a party to the Arrangement, he cannot be bound to arbitrate an FCA claim arising thereunder.

II.

Under the Federal Arbitration Act (“FAA”), a court is required to stay “any suit or proceeding” pending the arbitration of “any issue referable to arbitration under an agreement in writing for such arbitration.” 9 U.S.C. § 3.4 Because ascertaining the scope of an arbitration agreement is primarily a task of contract interpretation, we review de novo a district court’s determination of the arbitrability of a dispute. See Cara’s Notions, Inc. v. Hallmark Cards, Inc., 140 F.3d 566, 569 (4th Cir.1998). However, “in applying [common law] principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA], due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. Univ.,

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245 F.3d 315, 2001 U.S. App. LEXIS 4924, 2001 WL 293669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bankers-insurance-company-ca4-2001.