IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10304

Summary Calendar

OBADIAH LEVI FONTAINE,

Plaintiff-Appellant

v.

SPORT CITY TOYOTA,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:11-CV-2400

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Obadiah Levi Fontaine filed a Title VII civil rights complaint alleging 

that the defendant wrongfully terminated him for expressing his Christian 

beliefs. Fontaine’s complaint was arbitrated pursuant to the Federal 

Arbitration Act, and the arbitrator determined that Fontaine had not 

demonstrated that the defendant’s nondiscriminatory reason for his 

termination was pretextual. The district court denied Fontaine’s motion to 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 6, 2013

Lyle W. Cayce

Clerk

 

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No. 13-10304

vacate the award under 9 U.S.C. § 10(a)(2), rejecting Fontaine’s claim that 

there was evident partiality on the part of the arbitrator. Fontaine now moves 

for leave to proceed in forma pauperis (IFP) on appeal to challenge the district 

court’s denial of his motion to vacate the award.

When, as in this case, a district court certifies that an appeal is not taken 

in good faith, the appellant may either pay the filing fee or challenge the court’s 

certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). 

Our inquiry into an appellant’s good faith “is limited to whether the appeal 

involves legal points arguable on their merits (and therefore not frivolous).” 

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks 

and citation omitted). If we uphold the district court’s certification that the 

appeal is not taken in good faith, the appellant must pay the filing fee or, 

alternatively, we may dismiss the appeal sua sponte under 5th Circuit Rule 

42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24.

For the first time on appeal, Fontaine argues that the district court erred 

in denying his motion to vacate the arbitration award because the arbitrator 

was guilty of misconduct, see § 10(a)(3), and had exceeded her authority, see

§ 10(a)(4). We will not consider these newly raised issues. See Alford v. Dean 

Witter Reynolds, Inc., 975 F.2d 1161, 1163 (5th Cir. 1992).

Fontaine reiterates his claim that the award should have been vacated 

under § 10(a)(2) because the arbitrator was not impartial. He contends that

he provided the district court with 66 pages of “irrefutable documented 

evidence” of the arbitrator’s bias. Fontaine’s evidence, however, related to the 

merits of his claim, not the arbitrator’s bias. His belief that the weight of his 

evidence established the arbitrator’s bias fails to satisfy his “onerous burden” 

of demonstrating evident partiality. Householder Group v. Caughran, 354 

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F. App’x 848, 852 (5th Cir. 2009); see also Positive Software Solutions, Inc. v. 

New Century Mortg. Corp., 476 F.3d 278, 281-83 (5th Cir. 2007) (en banc).

Because Fontaine has failed to raise a nonfrivolous issue for appeal, see 

Howard, 707 F.2d at 220, we DENY his motion for leave to proceed IFP on 

appeal and DISMISS his appeal as frivolous, see Baugh, 117 F.3d at 202 n.24; 

5th Cir. R. 42.2.

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