[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 09-13840                  ELEVENTH CIRCUIT
                                                                  JUNE 15, 2010
                            Non-Argument Calendar
                                                                   JOHN LEY
                          ________________________
                                                                    CLERK

                     D. C. Docket No. 08-60637-CV-CMA

ALBERT PERHACH,


                                                                Plaintiff-Appellant,

                                      versus

OPTION ONE MORTGAGE CORPORATION,

                                                               Defendant-Appellee.


                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (June 15, 2010)

Before TJOFLAT, EDMONDSON and MARTIN, Circuit Judges.

PER CURIAM:

     Albert Perhach, appearing pro se, challenges the district court’s denial of his
motion for relief from its order compelling arbitration and his motion to vacate the

arbitrator’s award in his suit against his former employer, Option One Mortgage

Corporation (“Option One”), for breach of contract, fraud, and employment

discrimination in violation of the Age Discrimination in Employment Act, 29

U.S.C. § 623(a). After filing suit against Option One in federal court, Option One

moved the district court to stay proceedings and compel Perhach to file a petition

for arbitration pursuant to a Mutual Agreement to Arbitrate Claims (“Arbitration

Agreement”) signed by Perhach as a condition of his employment with Option

One. The district court granted Option One’s motion, and the parties arbitrated

their dispute. The arbitrator granted summary judgment in favor of Option One on

all of Perhach’s claims, and Perhach moved the district court to do two things: (1)

“vacate” its prior order compelling arbitration and (2) vacate the arbitrator’s award.

The district court submitted the matter to a magistrate judge who recommended

denying Perhach’s motions. Perhach did not file timely objections to the

magistrate judge’s report; consequently, the district court adopted the report and

the magistrate judge’s recommendation, denying Perhach’s motions. Perhach now

appeals.

I.    Whether the district court plainly erred in denying Perhach’s pro se
      motion for relief from the district court’s order compelling arbitration

      Appearing pro se on appeal, Perhach’s brief does not include an argument

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section. Nonetheless, Perhach asserts in his statement of jurisdiction that the

district court abused its discretion by compelling arbitration because he was

coerced into signing the Arbitration Agreement. Perhach explains that he was

coerced into signing the agreement because it was a condition of employment and

failure to sign it would have resulted in his immediate termination. He urges us to

reverse the district court’s order compelling arbitration and remand for further

proceedings. To his brief, Perhach attaches the Arbitration Agreement, his

employment offer letter, the arbitrator’s final response letter, a Texas arbitration

case, and a news article from 2007 regarding an arbitration case in the Ninth

Circuit Court of Appeals.

      Typically, we review de novo a district court’s order compelling arbitration.

Caley v. Gulfstream Aerospace Corp., 

, 1368 n.6 (11th Cir. 2005).

However, Perhach did not appeal directly the court’s order compelling arbitration,

but rather, he appeals the denial of his motion to “vacate” the court’s order

compelling arbitration. Perhach’s pro se “motion to vacate” the court’s prior order

is akin to a motion for relief from an order under Rule 60(b)(6). See Fed. R. Civ.

P. 60(b)(6) (“On motion and just terms, the court may relieve a party or its legal

representative from a final judgment, order, or proceeding for . . . (6) any other

reason that justifies relief.”). Generally, we review a district court’s order on a



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Rule 60(b) motion for an abuse of discretion. Willard v. Fairfield Southern Co.,

Inc., 

, 821 (11th Cir. 2006). However, when a magistrate judge issues

a report and notifies the parties of the consequences of failing to object to the

report, “and a party still fails to object to the findings of fact and those findings are

adopted by the district court the party may not challenge them on appeal in the

absence of plain error or manifest injustice.” Resolution Trust Corp. v. Hallmark

Builders, Inc., 

, 1149 (11th Cir. 1993). “In order to satisfy this

extremely stringent form of review, the party must establish that (1) an error

occurred; (2) the error was plain; (3) the error affected substantial rights; and (4)

not correcting the error would seriously affect the fairness of the judicial

proceeding.” Wilbur v. Correctional Services Corp., 

, 1204 n.6

(11th Cir. 2004) (quotations omitted). We will reverse for plain error in a civil

case only in exceptional cases where the error is “so fundamental as to result in a

miscarriage of justice.” Montgomery v. Noga, 

, 1294 (11 th Cir.

1999).

         “Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Boxer X v. Harris, 

, 1110 (11th Cir. 2006). Issues not briefed on appeal by a pro se litigant

are deemed abandoned. Horsley v. Feldt, 

, 1131 n.1 (11th Cir.



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2002). Additionally, we do not address arguments raised for the first time, in a pro

se litigant’s reply brief. Lovett v. Ray, 

, 1183 (11th Cir. 2003).

Moreover, “[b]y well settled convention, appellate courts generally will not

consider an issue or theory that was not raised in the district court.” F.D.I.C. v.

Verex Assur., Inc., 

, 395 (11th Cir. 1993).

      Statutory claims may be subject to an enforceable arbitration agreement,

pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., unless

Congress intended to preclude a waiver of judicial remedies to enforce the

statutory rights at issue. Gilmer v. Interstate/Johnson Lane Corp., 

, 26,

, 1652, 

(1991) (holding that the FAA applies to

claims under the ADEA).

      A party aggrieved by the alleged failure, neglect, or refusal of another
      to arbitrate under a written agreement for arbitration may petition any
      United States district court . . . for an order directing that such
      arbitration proceed in the manner provided for in such agreement. . . .
      The court shall hear the parties, and upon being satisfied that the
      making of the agreement for arbitration or the failure to comply
      therewith is not in issue, the court shall make an order directing the
      parties to proceed to arbitration in accordance with the terms of the
      agreement.

9 U.S.C. § 4 (emphasis added). “Furthermore, under the FAA, arbitration

agreements are ‘valid, irrevocable, and enforceable, save upon such grounds as

exist at law or in equity for the revocation of the contract.’” 

1367, citing 9 U.S.C. § 2. “Mere inequality in bargaining power, however, is not a

sufficient reason to hold that arbitration agreements are never enforceable in the

employment context.” 

, 111 S.Ct. at 1655. When a court is

faced with a motion to compel arbitration, it must determine whether the parties

agreed to arbitrate the dispute, and it “make[s] this determination by applying the

federal substantive law of arbitrability, applicable to any arbitration agreement

within the coverage of the Act.” Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 

, 626, 

, 3353, 

(1985) (quotations and citation omitted).

      Here, Perhach did not file a timely objection to the magistrate judge’s

report, and therefore we review any challenged factual findings for plain error.

Contrary to Perhach’s assertions, arbitration agreements are not coercive simply

because an employer requires them as a condition of employment, and as the FAA

provides, the district court shall compel arbitration once it has determined that the

parties agreed to arbitrate the dispute. In this case, Perhach admitted to signing the

Arbitration Agreement, which provided that Option One and Perhach “mutually

consent to the resolution by arbitration of all claims or controversies (“claims”),

past, present or future, whether or not arising out of my employment (or its

termination), that the Company may have against me or that I may have against the



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Company.” Given that Perhach’s coercion argument is based solely on the premise

that he would have been fired had he not signed the Arbitration Agreement, he fails

to demonstrate any error as a matter of law, much less plain error.

II.   Whether the district court erred in denying plaintiff’s pro se motion to
      vacate the final order of arbitration

      Perhach also challenges the district court’s denial of his motion to vacate the

final order of arbitration, arguing that the arbitrator failed to recognize that he was

coerced into signing the Arbitration Agreement, and the arbitrator did not provide

him the opportunity to present evidence. Specifically, Perhach asserts that the

arbitrator told him to “keep his evidence” for a hearing that never transpired.

      “On an appeal of a district court’s decision to confirm or vacate an

arbitration award, we review the district court’s resolution of questions of law de

novo and its findings of fact for clear error.” Rintin Corp., S.A. v. Domar, Ltd., 

, 1258 (11th Cir. 2007). As stated above, when a party fails to object to

a magistrate’s report, we review any challenged factual findings for plain error.

See Resolution Trust 

.

      The FAA provides four statutory grounds for vacating an arbitration award:

      (1) where the award was procured by corruption, fraud, or undue
      means;
      (2) where there was evident partiality or corruption in the arbitrators,
      or either of them;
      (3) where the arbitrators were guilty of misconduct in refusing to

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      postpone the hearing, upon sufficient cause shown, or in refusing to
      hear evidence pertinent and material to the controversy; or of any
      other misbehavior by which the rights of any party have been
      prejudiced; or
      (4) where the arbitrators exceeded their powers, or so imperfectly
      executed them that a mutual, final, and definite award upon the
      subject matter submitted was not made.

9 U.S.C. § 10(a). Additionally, we have recognized three non-statutory grounds

for vacating an arbitration award. B.L. Harbert Intern., LLC v. Hercules Steel Co.,

, 910 (11th Cir. 2006). “An award may be vacated if it is arbitrary

and capricious, if enforcement of the award is contrary to public policy, or if the

award was made in manifest disregard for the law.” 

omitted).

Moreover, we have held that “a mere difference of opinion between the arbitrators

and the moving party as to the correct resolution of a procedural problem will not

support vacatur under section 10(a)(3).” See Scott v. Prudential Securities, Inc.,

, 1016 (11th Cir. 1998) (affirming district court’s denial of motion to

vacate an arbitration award because the appellant’s allegations amounted “to

precisely the vague, remote, and speculative charges that we have held cannot

support an order to vacate an arbitration award”). The “arbitrator need not

consider all the evidence the parties seek to introduce but may reject evidence that

is cumulative or irrelevant.” 

In Scott, we also stated that “the FAA

permits arbitration to proceed with only a summary hearing and with restricted



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inquiry into factual issues . . . the arbitrator need only give each party the

opportunity to present its arguments and evidence.” 

internal

alterations omitted).

      Here, Perhach failed to object to the magistrate judge’s findings that the

arbitrator gave him the opportunity to file evidence and considered the evidence

that Perhach submitted, and therefore, we review the challenged factual findings

for plain error. While Perhach’s argument falls under one of the enumerated

statutory grounds for vacating an arbitration order, i.e., that the arbitrator refused to

hear evidence pertinent and material to the controversy, Perhach’s vague challenge

to the arbitration process fails to satisfy the plain error standard. Even though

Perhach had the opportunity to submit evidence, he chose not to present witnesses

and does not specify what evidence the arbitrator failed to consider. Accordingly,

we discern no reversible error.

             AFFIRMED.




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