had been waived. We do not reach these issues, and hence express no opinion. Nor do we consider the effect of Abbadini’s refusal to agree to waive any privilege. 2 . We also reject the argument, fairly implicit in the Hospital’s main brief and made explicit in its reply brief, that functus officio is a doctrine that in no way constrains the arbitrator, but merely constrains the judiciary. See Reply Br. at 6 (arguing that court, in remanding for clarification, is "powerless to command” that an arbitrator may not revisit the merits). To the contrary, if an arbitrator upon remand enters an award that does, in fact, reexamine tire merits, on application for confirmation or enforcement, such a result would be unenforceable under functus officio principles. See Colonial Penn 943 F.2d at 333
holding that an award of back pay is an issue for the court holding that the district court erred in confirming an award that was entered in derogation of the functus officio doctrine holding that the record supported the district courts award of damages holding that district court erred in dismissing the indictment based on sufficiency of evidence recognizing discretion of district court in determining a fee award