UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

DANIEL PETERSON, 

 Plaintiff - Appellant,

v.

MINERVA SURGICAL, INC.; 

DAVID CLAPPER, 

 Defendants - Appellees.

No. 24-3003

(D.C. No. 2:19-CV-02050-KHV-TJJ)

(D. Kan.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before BACHARACH, EID, and FEDERICO, Circuit Judges.

_________________________________

Daniel Peterson, pro se, appeals the district court’s denial of his 

motion to vacate an arbitration award and its order confirming that award. 

We have jurisdiction under 28 U.S.C. § 1291 and 9 U.S.C. § 16(a)(1)(D) and 

we affirm.

* After examining the briefs and appellate record, this panel has 

determined unanimously that oral argument would not materially assist in 

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 

34.1(G). The case is therefore ordered submitted without oral argument. 

This order and judgment is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. It may be 

cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 15, 2024

Christopher M. Wolpert

Clerk of Court

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I

Defendant Minerva Surgical, Inc., is a medical device manufacturer

headquartered in California. Peterson worked for Minerva as a sales 

representative in Kansas from 2015 to 2018, when he either resigned or was 

forced out. Peterson believed he was unlawfully forced out.

Peterson’s employment contract required arbitration to resolve 

disputes, so he filed an arbitration demand against Minerva.1 He claimed, 

among other things, that Minerva violated California Labor Code 

§ 1102.5(b), which prohibits employers from retaliating against employees 

based on whistleblowing activities. Minerva, for its part, filed a 

counterclaim alleging Peterson breached his employment contract when, 

after the end of his employment, he kept a copy of Minerva’s trade secrets.

The arbitrator held a five-day hearing in May 2023. Following the 

hearing, the arbitrator entered an award that summarized his factual 

findings and legal conclusions.

A

The following findings of fact made by the arbitrator are most relevant 

to this appeal. Although Peterson disagrees with some of them, we do not 

1 Peterson’s demand named David Clapper, Minerva’s CEO, as a 

defendant. In this lawsuit he likewise names Clapper as a defendant. No 

party has explained why Clapper is a proper party independent from 

Minerva, so we will refer exclusively to Minerva.

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have discretion to overturn them. See Denver & Rio Grande W. R.R. Co. v. 

Union Pac. R.R. Co., 119 F.3d 847, 849 (10th Cir. 1997) (“Errors in . . . the 

arbitrator’s factual findings . . . do not justify review or reversal on the 

merits of the controversy.”).

Minerva makes endometrial ablation devices used to treat heavy 

menstrual bleeding. Minerva’s original device received FDA approval in 

2015 or thereabouts. Minerva recruited Peterson that same year to be a 

sales representative.

By 2016, Minerva had received reports of injuries allegedly caused by 

its device or by doctors not using the device correctly.2 By 2017, it had 

developed, patented, and received FDA approval for a modified device

designed to prevent those injuries.

When the modified device became available, doctors told Peterson and 

other sales personnel that they wanted to exchange their original devices 

for the modified version, but Minerva generally would not permit this. 

When Peterson and other sales personnel emailed Minerva executives about 

doctors’ safety concerns with the original devices, Minerva executives

criticized them for putting safety concerns in writing.

2 Minerva’s internal documents showed an injury rate of 0.079%, or 

one injury for every 1,269 procedures.

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On April 17, 2018, Peterson emailed three top Minerva executives

asserting they had retaliated against him and otherwise mistreated him 

based on his advocacy for allowing doctors to exchange the original devices 

for the modified versions.3 He again advocated for allowing an exchange, 

pointing to the incidence of injury.

Minutes later, Peterson emailed a request for a leave of absence based 

on personal medical challenges. Minerva granted that leave. Over the next 

few months, Peterson (sometimes through his attorney) and Minerva 

(sometimes through its attorneys) exchanged many emails—Peterson 

insisted on written communication only—about the nature and severity of 

Peterson’s disability and whether Minerva could accommodate it. In early 

September 2018, he announced to Minerva that he would provide no more 

information about his disability, and he was no longer a Minerva employee.

Minerva treated this announcement from Peterson as a resignation, 

which it accepted. Peterson’s employment contract then obligated him to 

return all Minerva property, including confidential information. Sometime 

later, Minerva discovered that Peterson had nonetheless retained a hard 

drive containing thousands of Minerva documents, including trade secrets. 

3 This email is not in the record (as opposed to the arbitrator’s brief

summary of it), so it is unclear what alleged retaliation or mistreatment 

Peterson was referring to.

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Minerva hired a computer forensics expert to analyze the data on that hard 

drive, which Peterson still possessed as of the arbitration hearing. Minerva 

paid the expert more than $7,000 for his services.

B

The arbitrator concluded Peterson’s California whistleblower claim 

failed because:

• He had not proven protected activity, i.e., advocating for 

swapping the original devices for the modified devices based on

genuine safety concerns, as opposed to concerns about keeping 

customers satisfied.

• He had not proven that he suffered an adverse employment 

action. Specifically, he had not proven that his months-long 

email exchange about disability was a sham process intended to 

force him to resign.

• Even if he had proven the foregoing two elements, he had not 

proven that his reports of safety concerns were a substantial 

motivating reason in Minerva’s alleged scheme to force him to 

resign.

As for Minerva’s contract counterclaim, the arbitrator found 

Peterson’s retention of trade secrets qualified as a breach and he awarded 

damages in the amount of the fee Minerva paid to the computer forensics

expert, about $7,000. The arbitrator further awarded Minerva $190,000 in 

fees and about $1,500 in costs based on a fee-shifting clause in Peterson’s 

employment contract. Finally, the arbitrator ordered Peterson to return 

Minerva’s documents.

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II

Peterson, now pro se, moved in the United States District Court for 

the District of Kansas to set aside the arbitration award. See 9 U.S.C. 

§ 10(a). Minerva opposed and cross-moved for confirmation. See id. § 9. The 

district court denied Peterson’s motion, granted Minerva’s cross-motion, 

and entered final judgment consistent with the arbitrator’s award. Peterson 

now timely appeals.

III

“We review a district court’s order to vacate or enforce an arbitration 

award de novo.” Dish Network LLC v. Ray, 900 F.3d 1240, 1243 (10th Cir. 

2018) (“Ray”). A federal court’s ability to vacate an arbitration award is 

extremely limited. See id. (summarizing the possible justifications for 

vacatur). Indeed, “the standard of review of arbitral awards ‘is among the 

narrowest known to the law.’” ARW Exploration Corp. v. Aguirre, 45 F.3d 

1455, 1462 (10th Cir. 1995) (internal quotation marks omitted). We will 

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discuss below the possible justifications for vacatur, as they become 

relevant to Peterson’s arguments.4

A

1

As noted, the arbitrator concluded Peterson’s whistleblower 

retaliation claim failed in part because he failed to show protected activity.

The arbitrator believed Peterson’s safety complaints were profit-motivated, 

not genuinely safety-motivated. One reason the arbitrator gave in support 

of this interpretation of the evidence was that “the original device had never 

been deemed unsafe by the FDA or subject to recall.” R. at 235. Peterson 

claims the arbitrator was misled by Minerva’s witnesses’ testimony that the 

original device was still safe, in contrast to evidence he introduced that the 

original device was unsafe. Peterson therefore claims “the [arbitration] 

award was procured by . . . fraud,” 9 U.S.C. § 10(a)(1), which is one 

justification for this court to vacate an arbitration award.

4 We decline to consider one of Peterson’s main arguments. The 

district court denied Peterson’s motion to vacate because he had not 

followed a District of Kansas local rule governing the length and content of 

motions. Peterson says this was error, but the district court also provided a 

complete alternative analysis on the merits. We likewise focus on the 

merits, so even if the district court made a procedural error, any such error 

is harmless. See Fed. R. Civ. P. 61 (requiring courts to disregard harmless 

error).

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Minerva says the arbitrator never made a finding that the device was 

either safe or unsafe. For argument’s sake, we will accept Peterson’s 

interpretation that the arbitrator concluded the original device was safe. 

We will further assume this was an important part of the arbitrator’s 

further conclusion that Peterson did not genuinely believe the product was 

unsafe. Still, the first conclusion—the original device was safe—is not the 

product of fraud. It is merely the resolution of a factual dispute. The 

arbitrator had before him all the evidence Peterson now offers to show the 

original product was unsafe. The arbitrator resolved the factual issue 

against Peterson.

As we have already stated, federal courts do not have power to review 

an arbitrator’s factual findings. See Denver & Rio Grande, 119 F.3d at 849.

Because it is a veiled attempt to have us review the arbitrator’s finding of 

fact, we reject Peterson’s fraud theory.

2

During the arbitration, Peterson pursued multiple retaliation claims, 

such as a California whistleblower retaliation claim, retaliating against a 

person who requests a disability accommodation in violation of California 

law, and retaliating in violation of Kansas common law. Analyzing all of 

Peterson’s retaliation claims together, the arbitrator set forth a

five-element test Peterson needed to satisfy in order to prevail. One of those 

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elements was that “the protected activity was a substantial motivating 

reason for the adverse employment action.” R. at 235. Peterson argues this 

was error because his California whistleblower claim only requires him to 

prove that his protected activity “was a contributing factor in the alleged 

prohibited action against the employee,” Cal. Lab. Code § 1102.6, not a 

substantial motivating reason.

A federal court cannot set aside an arbitration award based on legal 

error unless it amounts to “a manifest disregard of the law, defined as 

willful inattentiveness to the governing law.” Ray, 900 F.3d at 1243

(internal quotation marks omitted). Peterson believes he satisfies this 

standard because the arbitrator’s supporting citation for the five-element

retaliation test was as follows: “CACI 2505 and 4603; no citations to Kansas 

law were provided but basic research supports that the California standards 

are universal.” R. at 235 n.2. CACI 2505 is the California pattern jury 

instruction for Peterson’s disability-based retaliation claim. It uses the 

“substantial motivating reason” formulation. CACI 4603 is the pattern 

instruction for Peterson’s whistleblower-based retaliation claim, and it uses 

the “contributing factor” formulation. Thus, according to Peterson, the 

arbitrator manifestly disregarded the law because it is clear the arbitrator 

looked at the law and saw the two differing standards, but he chose to apply

the inapplicable standard.

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We are not persuaded. In our reading, any error resulted from the 

initial choice to treat all retaliation claims as equivalent—further evidenced 

by the arbitrator’s statement about “basic research” showing that

“California standards are universal,” R. at 235 n.2. Even if it was a 

misapplication of California law, we are not convinced it was “willful 

inattentiveness,” Ray, 900 F.3d at 1243 (internal quotation marks omitted). 

We therefore reject this argument.

3

We may also vacate an arbitration award “when [it] violates public 

policy.” Id. Peterson claims the arbitrator’s denial of his whistleblower 

claim does just that.5 He seems to argue that California’s whistleblower 

protections are meant to serve public policy (specifically, public safety), so 

the arbitrator’s flawed reasoning as to his whistleblower claim must 

necessarily violate public policy.

Peterson failed to preserve this argument in the district court. His 

mention of the public policy exception in this context was very brief. See R. 

at 195. Regardless, he provides no support for the idea that erroneous 

5 Peterson also repeatedly claims, without specifics, that the 

arbitrator’s entire award violates public policy. We disregard these 

arguments as inadequately developed. See United States v. Jones, 768 F.3d 

1096, 1105 (10th Cir. 2014) (“[P]erfunctory or cursory reference to issues 

unaccompanied by some effort at developed argument are inadequate to 

warrant consideration . . . .”).

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analysis of a cause of action intended to further public safety is 

automatically a violation of public policy that justifies overturning an 

arbitration award. Also, we have presumed the arbitrator found the original 

device to be safe, as Peterson contends, and we have no power to review that 

finding. We therefore reject Peterson’s public policy argument.

B

1

Peterson argues the arbitrator manifestly disregarded the law 

because he found Peterson breached his employment contract by making a 

copy of Minerva’s confidential information. Peterson says the employment 

contract only prohibits disclosure, not copying, so there was no breach.

Peterson did not make this argument to the district court until his 

reply brief in support of his motion to vacate the arbitration award, and the 

district court did not rule on it. “[W]hen a litigant fails to raise an issue 

below in a timely fashion and the court below does not address the merits 

of the issue, the litigant has not preserved the issue for appellate review.” 

FDIC v. Noel, 177 F.3d 911, 915 (10th Cir. 1999). We therefore do not 

address this argument further.

2

Peterson also argues the arbitrator manifestly disregarded the law by 

finding a breach of contract without evidence of damages. Peterson argues 

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the amount Minerva paid to its computer forensics expert cannot count as 

damages because it was a litigation expense. He does not tell us which 

state’s law applies to this claim. The only decision he cites is Tank 

Connection, LLC v. Haight, 161 F. Supp. 3d 957 (D. Kan. 2016), which held

that the plaintiff could not claim computer forensic consulting fees as 

damages for trade-secret misappropriation under Kansas law because the 

plaintiff was searching for evidence of misappropriation, not compensating 

for losses caused by the misappropriation, see id. at 960, 965–66.

If the arbitrator committed any error here, it again did not rise to 

“willful inattentiveness,” Ray, 900 F.3d at 1243 (internal quotation marks 

omitted). We find no basis to vacate the award.

IV

We affirm the district court’s judgment. We deny Minerva’s request 

for attorneys’ fees and costs on appeal. Minerva did not put the fee-shifting 

portion of the employment contract into the record, so we cannot say 

whether we (as opposed to the arbitrator) have power to award fees and 

costs.

Entered for the Court

Richard E.N. Federico

Circuit Judge

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