Six months after the nation’s highest court ruled that a man could theoretically reopen his age discrimination case to contest an arbitrator’s unfair decision, the Denver-based federal appeals court determined he could not actually do so under the procedural rules.

As a result, plaintiff Gary Waetzig cannot challenge his arbitrator’s violation of her arbitration agreement and her faulty handling of the proceedings, as a federal judge had previously found.

Two years ago, the U.S. Court of Appeals for the 10th Circuit noted Waetzig’s case presented an “open question”: Because Waetzig originally dismissed his age discrimination lawsuit so arbitration could occur, did federal rules allow a trial judge to eventually overturn the arbitrator’s allegedly unfair decision using that same lawsuit?

By 2-1, a three-judge panel said no, reasoning that Waetzig’s decision to dismiss his lawsuit with the option to refile did not fit the description of a “final proceeding” that he could later ask a judge to reopen.

The U.S. Supreme Court elected to hear Waetzig’s appeal and it unanimously reversed the 10th Circuit. Although the justices found Waetzig’s case qualified for reopening, the case was returned to the circuit to determine whether it should be reopened.

Based on a misstep early in the proceedings, the appellate panel determined Waetzig’s discrimination case should not be reopened, nor could he file a new challenge to the arbitrator’s faulty decision.

Originally, Waetzig filed suit against his employer, oil services company Halliburton, for being laid off at age 66, allegedly in violation of federal law. He agreed to dismiss the lawsuit because he was required to arbitrate his dispute with the corporation.

An arbitrator eventually sided with Halliburton, but Waetzig returned to federal court, asking a judge to order another arbitration. He cited several ways in which arbitrator Florine L. Clark allegedly violated the rules of the arbitration:

• She did not give 10 days’ notice of the hearing at which she expected the parties to argue their positions

• She did not record the hearing

• She did not explain why she decided in Halliburton’s favor

Then-U.S. Magistrate Judge Kristen L. Mix agreed Clark did not follow the agreed-upon protocol and a new arbitrator needed to redo the hearing.

In deciding she could reopen the case post-arbitration, Mix noted Waetzig “appears to have made a careless mistake” by dismissing the case, rather than administratively closing it during the arbitration. The rules also allow for reopening when there is “any other reason that justifies relief.”

Because a recent Supreme Court decision prevented Waetzig from filing a new challenge to the arbitrator’s award, “unless the Court allows Plaintiff to reopen the case, Plaintiff will, effectively, be deprived of a remedy,” wrote Mix.

That is the way it has to be, the 10th Circuit concluded after receiving the case back from the Supreme Court.

In an unsigned Aug. 1 opinion, Judges Timothy M. Tymkovich, Scott M. Matheson Jr. and Allison H. Eid wrote that Waetzig could not reopen his case due to the “careless mistake” because he waited too long to do so. As for the unrelated Supreme Court decision that prevented Waetzig from filing a new case, the panel did not view that as a compelling enough reason. Instead, Waetzig was stuck with his lawyers’ decision to dismiss the case to let the arbitration proceed.

“Mr. Waetzig could have moved to abate the case pending the arbitration rather than dismissing it. By doing so, he may have ensured the district court could exercise jurisdiction over a later motion to vacate the arbitration,” the panel wrote. “These litigation choices might have qualified for relief …. But they do not result from any extraordinary circumstances.”

The case is Waetzig v. Halliburton Energy Services, Inc.