Georgia Court of Appeals Takes a Pass on “Functus Officio” as State Common Law

by Andrew Flake

A neighbor of mine, who loves to cook, recently showed me what looked like a small handheld blowtorch. He clicked a trigger, firing up a flame like a tiny jet engine, and proudly sharing that he could now melt and caramelize sugar, in order to prepare the perfect… flan. My interest level, but not my fire safety concern, dropped. Flan is not my dessert of choice. What exactly is it? A pudding? A custard? Even Wikipedia can’t quite fit it into a category.

But my friend’s flan reference did bring to mind an arbitration topic, the doctrine of “functus officio.” Mention functus officio to most arbitrators, and you’ll get a knowing nod. It’s a shorthand for when the arbitrator has completed her work and the arbitration ends. But like a flan, functus officio — how it applies, whether it is needed — lacks a certain consistency.

In general, with some traditional exceptions like clerical correction or incompleteness of an award, it is the arbitration principle that once an arbitration tribunal issues its merits award and determines a claim, the tribunal’s work has concluded; there is no merits redetermination. “Functus officio” — of no further legal effect.

The Eleventh Circuit Court of Appeals has acknowledged and defined it as “a common law rule (meaning “task performed”) [providing] that, while an arbitrator may correct clerical, typographical, or computational errors in a final award, he has no power to revisit the merits of the award after it has issued.”

Interestingly, though, while acknowledging the doctrine, the Eleventh Circuit did not adopt it as a rule. In the case before it, there was not need to do so, as the arbitration rules at issue — AAA’s Labor Arbitration Rules — incorporated the same concept of finality. That left open the doctrine’s “continuing viability.”

And to this same point, some form of the functus officio doctrine is reflected in major arbitral rule sets.

• In a AAA Commercial Arbitration, the principle of functus officio is explicitly incorporated into the rules. AAA Comm. R. 52 (“Within 20 calendar days after the transmittal of any award, any party, upon notice to the other parties, may request that the arbitrator, through the AAA, interpret the award or correct any clerical, typographical, or computational errors in the award. The arbitrator is not empowered to re-determine the merits of any claim already decided.’)
• Compare CPR: CPR Administered Arbitration Rules 15.6 (“Within 20 days after receipt of the award, either party, with notice to the other party and CPR, may request the Tribunal to clarify the award; to correct any clerical, typographical or computation errors, or any errors of a similar nature in the award; or to make an additional award as to claims or counterclaims presented in the arbitration but not determined in the award.”)
• Or JAMS: JAMS Comp. Arb. R. 24 (j) (“Within seven (7) calendar days after service of a Partial Final Award or Final Award by JAMS, any Party may serve upon the other Parties and file with JAMS a request that the Arbitrator correct any computational, typographical or other similar error in an Award (including the reallocation of fees pursuant to Rule 31(c) or on account of the effect of an offer to allow judgment), or the Arbitrator may sua sponte propose to correct such errors in an Award.”);

Given rule provisions like these, whether the Eleventh Circuit officially adds functus officio to the post-award “menu” is unclear. If it does, it would presumably be a situation, perhaps an ad hoc arbitration, in which the agreement or rules in place for that particular arbitration do not address that issue, or do not address it clearly.

Similarly, Georgia courts have not needed to adopt the rule. I located only two appellate opinions in which functus officio is even mentioned, both responding to an appellant’s claim that an arbitrator had issued multiple or inconsistent final awards. And in both cases, Wells v. Wells-Wilson in 2021 and very recently, in July of this year, Weathers, II v. Weathers, the Court of Appeals resolved the appeal on other grounds, namely, that there was no final award at all, and thus did not officially recognize or adopt functus officio.

Here again, given the inclusion of the functus officio doctrine in many sets of arbitration rules, the occasions to consider adopting it as common law may be few. Additionally, the Georgia Arbitration Act itself implicitly recognizes the functus officio principle, listing only specific, non-merits reasons an arbitrator may change an issued award. See O.C.G.A. Section 9-9-11.

Whether or not functus officio earns a place as common law doctrine, though, or is applied functionally via an administering organization’s rules, the principle remains foundational: the final award marks the conclusion of the case, with the arbitrator’s ability to modify it, constrained.

[The cases referenced are IBEW, Local Union 824 v. Verizon Fla., LLC, 803 F.3d 1241, 1245, 25 Fla. L. Weekly Fed. C 1667 (11th Cir. 2015), Wells v. Wells-Wilson, 360 Ga. App. 646, 657, 860 S.E.2d 185, 196 (2021) and
Weathers, II v. Weathers, No. A24A0608, 2024 Ga. App. LEXIS 318, at *1 n.2 (Ct. App. July 22, 2024.]