ARB CASE NO. 05-099
ALJ CASE NO. 2002-ERA-032
DATE: August 31, 2007
In the Matter of:
SYED M. A. HASAN,
COMPLAINANT,
v.
SARGENT & LUNDY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Syed M. A. Hasan, pro se,
Madison, Alabama
For the Respondent:
Harry Sangerman, Esq., Sangerman
& Gilfillan, Chicago, Illinois
FINAL DECISION AND ORDER
Syed M. A. Hasan filed a complaint
alleging that Sargent & Lundy (S & L) violated the whistleblower protection
provision of the Energy Reorganization Act (ERA). The ERA protects employees
who engage in certain activity from retaliation.[1]
A U.S. Department of
[Page 2]
Labor Administrative Law Judge (ALJ) recommended that we
dismiss Hasan’s complaint because he concluded that the doctrine of collateral
estoppel precludes Hasan from bringing this complaint. We, too, conclude that
collateral estoppel applies and therefore dismiss Hasan’s complaint.
Background
S & L is an
engineering firm that performs contract work in the nuclear power industry.
Hasan applied for an engineer position with S & L in 1998 and 1999. S
& L did not hire him for the engineer position and decided never to hire
him for any position. Hasan filed a complaint alleging that S & L did not hire
him and would never hire him because he had engaged in activity that the ERA
protects. Therefore, Hasan claimed that S & L violated the ERA. This
complaint initiated Hasan I.[2]
After a hearing
on the merits, a United States Department of Labor Administrative Law Judge
(ALJ) found that Hasan did not prove a necessary element of his case, that is,
that he was qualified for the engineer position. The ALJ also found that S
& L legitimately refused to hire Hasan for any position.[3]
Therefore, he recommended that Hasan’s complaint be dismissed. Hasan appealed
to the Administrative Review Board (Board). The Board agreed with the ALJ’s
findings and dismissed the complaint.[4]
The Seventh Circuit denied Hasan’s Petition for Review[5]
and thereafter denied Hasan’s request for a rehearing and rehearing en banc.
[Page 3]
During the pendency of Hasan I,
Hasan sent another job application to S & L. S & L refused to hire
him. Hasan then filed the instant ERA complaint, Hasan II, alleging
that the company refused to hire him because he had engaged in ERA-protected
activity. The Labor Department’s Occupational Safety and Health Administration
(OSHA) investigated this complaint and found that it had no merit. Hasan then
requested a hearing before an ALJ. Hasan II was assigned to a different
ALJ.
The ALJ issued
a prehearing order, and shortly thereafter S & L submitted a motion to
dismiss, or, in the alternative, to place the case in abeyance pending the
resolution of Hasan I. S & L argued, among other things, that Hasan
was collaterally estopped from relitigating Hasan I. Hasan replied and
requested discovery. The ALJ held this matter, Hasan II, in abeyance
until Hasan I was resolved.
After the Board
affirmed Hasan I, the ALJ issued a show cause order as to why Hasan
II should not be dismissed because of collateral estoppel. Hasan replied
to the merits of the show cause order and also asked the ALJ to wait until a
ruling on the Petition for Review in the Seventh Circuit in Hasan I was
issued. On May 6, 2005, after waiting until the Seventh Circuit ruled on
Hasan’s requests, the ALJ recommended that this case, Hasan II, be
dismissed because of collateral estoppel.[6]
Hasan appealed.
Jurisdiction and Standard of Review
The Board has jurisdiction to review the ALJ’s
recommended decision pursuant to 29 C.F.R. § 24.8 (2007) and Secretary’s Order
No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the Board the
Secretary’s authority to review cases under the statutes listed in 29 C.F.R. §
24.1(a), among which is the ERA).
Under the
Administrative Procedure Act, the Board, as the Secretary’s designee, acts with
all the powers the Secretary would possess in rendering a decision under the
whistleblower statutes.[7]
In ERA cases, the Board engages in de novo review of the ALJ’s recommended
decision.[8]
Likewise, the Board
reviews an ALJ’s recommended grant of summary decision de novo, i.e.,
the same standard that the ALJ applies in initially evaluating a motion for
summary judgment governs our review.[9]
The standard for granting summary decision is essentially the same as the
one used in Fed. R. Civ. P. 56,
the rule governing summary
[Page 4]
judgment in the federal courts.[10]
Thus, pursuant to 29 C.F.R. § 18.40(d), the ALJ may
issue summary decision “if the pleadings, affidavits, material obtained by
discovery or otherwise, or matters officially noticed show that there is no
genuine issue as to any material fact and that a party is entitled to summary
decision.” A “material fact” is one the existence of which affects the outcome
of the case.[11]
And a “genuine issue” exists when the nonmoving party produces sufficient
evidence of a material fact that a factfinder is required to resolve the
parties’ differing versions at trial. Sufficient evidence is any significant
probative evidence.[12]
Discussion
Sargent & Lundy’s Motion to Strike Hasan’s Brief
As a preliminary matter, we take up
Sargent & Lundy’s Motion to Strike Hasan’s Brief. Hasan’s Initial Brief is
replete with abusive characterizations and personal attacks on various judicial
tribunals. Hasan opens his Brief with a general insult aimed at the Department
of Labor.[13]
Throughout his pleadings, Hasan casts unfounded, disparaging characterizations at
the Board, the Seventh Circuit,[14]
and the ALJs presiding over his earlier litigation.[15]
Hasan also makes personal attacks on both the Board’s General Counsel and
opposing counsel.[16]
Hasan has been warned several times
about abusive language in his briefs. In Hasan v. Commonwealth Edison, Commonwealth
Edison moved to strike Hasan’s pleadings “because they are infected with
abusive and impertinent attacks that have no place in settings before this
Tribunal.” Because Hasan was pro se, the Board did not strike his brief. But
we warned:
[Page 5]
If Hasan’s briefs in these cases had been filed by an attorney, we would
not hesitate to strike them as inconsistent with a lawyer’s ethical
obligations. However, because Hasan is a pro se litigant and is not a
lawyer, we allow him considerably more leeway, and therefore decline to grant
ComEd’s motion to strike his briefs in these cases. We agree with ComEd,
however, that it is reasonable for a court to demand that all litigants –
including pro se litigants – comport themselves with a measure of
civility and respect for the tribunals that hear their cases. Among pro se litigants,
this proposition applies particularly to litigants such as Hasan, who has
significant litigation experience. Not only is vituperative behavior by a
litigant unwarranted and inappropriate, it ultimately is self-defeating because
it detracts from a complainant’s ability to make a sound legal argument in
support of his case.[[17]]
But even after this stern warning, Hasan
filed an “Emergency Motion” herein which continued his invective-filled
tirades.[18]
Nevertheless, we gave Hasan another chance to conform. We wrote:
As an initial matter, we consider Sargent & Lundy’s request that we
strike Hasan’s motion because the Emergency Motion is “another in [a] series of
pleadings filed by Hasan that defames opposing counsel, the various judges that
have been assigned his cases, the federal agencies with responsibility for ERA
matters and even the U.S. Congress.” Respondent’s Opposition to and Request to
Strike Emergency Motion to Vacate [the ALJ’s] Order at 3.
Hasan has once again filed a pleading with the Board that is replete with
offensive personal attacks upon the integrity and competency of the Department
of Labor’s administrative law judges, among others. The Board has admonished
Hasan previously . . . . Hasan has chosen to ignore the Board’s instruction.
Accordingly, in light of Hasan’s pro se status, we will give Hasan just one
more opportunity to adhere to the standards of civility and respect that the
Board requires of those who litigate before it. We will hold Sargent &
Lundy’s Motion to Strike Hasan’s Emergency Motion in abeyance for the time
being. However, Hasan is hereby put on notice that if
[Page 6]
he persists in filing
pleadings in this case (or in any other case before the Board) that contain
such vitriolic personal attacks, we will strike any such pleading and, if
appropriate, dismiss the complaint in support of which the pleading was filed.[[19]]
S & L argues not
only that we should strike Hasan’s Brief but also that we should dismiss his
complaint.[20]
The company cites Somerson v. Mail Contractors of America for the
proposition that the Board has the ability to fashion sanctions for abusive
conduct and therefore should dismiss Hasan’s complaint. In Somerson,
the ALJ found that the complainant, Somerson, “willfully and intentionally
violated court orders, abused personnel during telephone calls, and finally, so
disrupted the conduct of the formal hearing that it had to be terminated.”[21]
We accepted the ALJ’s findings and characterized Somerson’s behavior as
“blatantly contumacious, egregious misconduct.”[22]
The ALJ dismissed Somerson’s complaint and we affirmed. We held that
Department of Labor ALJs have inherent power to achieve the orderly and
expeditious disposition of cases. Therefore, they may impose sanctions,
including the severe sanction of dismissal, so long as they exercise that
authority with restraint and discretion.[23]
We, too, have authority to effectively manage our affairs, including authority
to issue sanctions, including dismissal, for a party’s continued failure to
comply with Board orders and briefing requirements.[24]
We find that Hasan’s conduct in submitting the
abusive and insulting brief does not, yet, constitute blatantly contumacious
and egregious misconduct conduct warranting dismissal. But we will not excuse
abusive and vituperative pleadings. Therefore, since we have warned Hasan that
we will strike such pleadings, and since we find that further warnings will
likely have no effect, we GRANT S & L’s Motion to Strike Hasan’s
Initial Brief.
Collateral Estoppel Precludes Hasan’s Claim
Legal Standard for Collateral Estoppel
As noted earlier, the ALJ concluded
that the allegations of Hasan II were subject to collateral estoppel.[25]
Collateral estoppel, or “issue preclusion,” is a concept included within
[Page 7]
the
doctrine of res judicata, which “refers to the effect of a judgment in
foreclosing a relitigation of a matter that has been litigated and decided.”[26]
Collateral estoppel applies in administrative adjudication.[27]
Our jurisprudence holds that
collateral estoppel applies when: 1) the same issue has been actually
litigated and submitted for adjudication; 2) the issue was necessary to the
outcome of the first case; and 3) precluding litigation of the contested second
matter does not constitute a basic unfairness to the party sought to be bound
by the first determination.[28]
Collateral Estoppel Applies Here
As we
previously discussed, Hasan alleged, in both Hasan I and II, that
S & L discriminated against him when it refused to hire him. Thus, the
issue in both cases is whether S & L violated the ERA when it refused to
hire Hasan. Hasan appears to argue that because he applied for the job at
issue here after the Hasan I hearing, he was therefore applying for a
different job than before.[29]
We read this as arguing that Hasan I and Hasan II are litigating
different issues. But the record shows that, in both cases, Hasan was applying
for engineering jobs. Besides, Hasan I held that S & L legitimately
refused to hire Hasan for any position. Thus, the issues are identical or, at
worst, substantially the same.[30]
Furthermore, the issue litigated and decided in Hasan I decided the
outcome of that case. Moreover, because the issue was fully and fairly
litigated in a hearing before a U.S. Department of Labor ALJ in Hasan I,
precluding Hasan from litigating the issue again would not be unfair.[31]
Therefore, we conclude that collateral estoppel precludes Hasan’s whistleblower
complaint.
[Page 8]
In his Rebuttal Brief, Hasan argues that
the Board should refuse to apply the doctrine of issue preclusion.[32]
He relies upon the Secretary’s decision in Ewald v. Virginia. In Ewald,
the complainant brought a First Amendment claim in the District Court during
the discovery stage of her environmental whistleblower litigation in the
Department of Labor. The District Court dismissed the claim because Ewald’s
speech was not the “but for” cause of her termination. The Department of Labor
ALJ subsequently dismissed Ewald’s whistleblower case on collateral estoppel
grounds, holding that she could not relitigate the issue of whether the commonwealth of Virginia retaliated against her because of protected activity. The
Secretary reversed the ALJ, holding that under a well-established exception to
the application of collateral estoppel, “a party should not be precluded from
litigating an issue in a second case where the burden of persuasion on the
issue was greater in the first case.”[33]
Thus, because the “but for” burden of persuasion under the First Amendment is
more stringent than the “because of” or “motivating factor” burden under the
environmental whistleblower statutes, the exception applied in Ewald.[34]
Therefore, because the exception to the collateral estoppel rule discussed in Ewald
does not apply here, Hasan’s argument fails.
Hasan further argues that had he
had an opportunity for a hearing and discovery, he could show the distinction
between Hasan I and II.[35]
The discovery Hasan sought seems to pertain only to the qualifications of the
engineers that S & L hired between December 2001 and June 2002.[36]
Hasan presents no argument or authority as to how this information would assist
him in defending against S & L’s collateral estoppel argument.
We are
aware that pro
se pleadings are held to less exacting standards than those prepared by counsel
and are to be liberally construed.[37] Despite the fact that pro se
filings are construed liberally, the Board must be able to discern cogent
arguments in any appellate brief, even one from a pro se litigant.[38] For us to consider
an argument, a party must develop
[Page 9]
the argument with citation to authority.[39]
Where, as here, a party fails to develop the factual
basis of a claim on appeal and, instead, merely draws and relies upon bare
conclusions, the argument is deemed waived.[40]
The ALJ’s Harmless Error
The ALJ also
held that even if collateral estoppel did not apply, Hasan’s claim should be
dismissed. The ALJ stated:
Ultimately,
however, the Complainant fails to demonstrate that he was qualified for the
available positions and the evidence is insufficient to raise a reasonable
inference that the protected activity was a contributing factor in the adverse
employment action. Furthermore, as shown in Hasan I, Respondent had shown
legitimate, nondiscriminatory reasons for its action. Therefore, like Hasan I,
Hasan II warrants dismissal for failing to prove the essential elements of a
violation of the employee protection provisions of the ERA.[[41]]
But in these
proceedings, Hasan was defending against S & L’s motion for summary
decision. His burden therefore was merely to “set forth specific facts showing
that there is a genuine issue of fact for the hearing.”[42]
Requiring Hasan to “prove the essential elements” of his ERA claim when facing
a motion for summary decision unfairly burdens him and
[Page 10]
constitutes error. But
since we dismiss Hasan’s claim because of collateral estoppel, the ALJ’s error
is harmless.
Conclusion
Because the issue in Hasan I and II
is the same, and because that issue decided the outcome of Hasan I, and
because that issue was fully and fairly litigated in Hasan I, we conclude
that collateral estoppel applies and that no other issue of material fact
exists. Therefore, S & L is entitled to summary decision, and we DENY
Hasan’s complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[1]
42 U.S.C.A. § 5851(a) (West 2007). This statute has been amended
since Hasan filed his complaint, but the amendments are not applicable to this
case because Hasan’s complaint was filed before the amendments’ effective date,
August 8, 2005. Energy Policy Act of 2005, Pub. L. 109-58, Title VI, § 629,
119 Stat. 785 (Aug. 8, 2005). The Act also protects applicants. Samodurov
v. Gen. Physics Corp., No. 1989-ERA-20, slip op. at 3 (Sec’y Nov. 16,
1993). Hasan has filed many ERA complaints. See e.g., Hasan v. Sargent
& Lundy, ARB No. 03-030, ALJ No. 2000-ERA-007 (ARB July 30, 2004), aff’d
sub nom., Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001 (7th Cir. 2005); Hasan v. Stone
& Webster Engineers & Constructors, Inc., ARB No. 03-058, ALJ No.
2000-ERA-010 (ARB June 27, 2003), aff’d sub nom., Hasan v. Sec’y of Labor,
No. 03-1981, 2004 WL 574520 (1st Cir. Mar. 24, 2004); Hasan v.
J.A. Jones, Inc., ARB No. 02-121, ALJ No. 2002-ERA-018 (ARB June 25, 2003),
aff’d sub nom., Hasan v. U.S. Dep’t of Labor, No. 03-1852, 2004 WL
1539635 (4th Cir. July 9, 2004); Hasan v. J.A. Jones, Inc.,
ARB No. 02-123, ALJ No. 2002-ERA-005 (ARB June 25, 2003), aff’d sub nom.,
Hasan v. U.S. Dep’t of Labor, No. 03-15469, 2004 WL 1121580 (11th Cir. May
11, 2004); Hasan v. Florida Power & Light Co., ARB No. 01-004, ALJ
No. 2000-ERA-012 (ARB May 17, 2001), aff’d sub nom., Hasan v. U.S. Dep’t of
Labor, No. 01-12953, 2002 WL 833328 (11th Cir. Apr. 11, 2002); Hasan v.
Wolfe Creek Nuclear Operating Corp., ARB No. 01-006, ALJ No. 2000-ERA-014
(ARB May 31, 2001), aff’d sub nom., Hasan v. U.S. Dep’t of Labor, 298
F.3d 914 (10th Cir. 2002); Hasan v. Commonwealth Edison Co., ARB Nos.
01-002, 01-003, 01-005, ALJ Nos. 2000-ERA-008, 011, 013 (ARB Apr. 23, 2001), aff’d
sub nom., Hasan v. U.S. Dep’t of Labor, No. 01-1130, 2002 WL 448410 (7th
Cir. Mar. 19, 2002); Hasan v. Burns & Roe Enters., Inc., ARB No.
00-080, ALJ No. 2000-ERA-006 (ARB Jan. 30, 2001), aff’d sub nom., Hasan v.
U.S. Sec’y of Labor, No. 01-1322, 2004 WL 1055257 (3d Cir. Apr. 23,
2004); Hasan v. Intergraph Corp., ARB Nos. 97-016, 97-051, ALJ Nos.
1996-ERA-017, 027 (ARB Aug. 6, 1997), aff’d sub nom., Hasan v. Director,
190 F.3d 544 (11th Cir. 1999); Hasan v. Commonwealth Edison Co., ARB No.
00-028, ALJ No. 2000-ERA-001 (ARB Dec. 29, 2000), aff’d sub nom., Hasan v. U.S.
Dep’t of Labor, No. 01-1131, 2002 WL 448410 (7th Cir. Mar. 19, 2002); Hasan
v. Commonwealth Edison Co., ARB No. 00-043, ALJ No. 1999-ERA-017 (ARB Dec.
29, 2000), aff’d sub nom., Hasan v. U.S. Dep’t of Labor, No. 01-2177,
2002 WL 448410 (7th Cir. Mar. 19, 2002).
[2]
Hasan v. Sargent & Lundy, 2000-ERA-007, slip op. at 3 (ALJ
Dec. 5, 2002) (Hasan I).
[3]
Id., slip op. at 13.
[4]
Hasan v. Sargent & Lundy, ARB No. 03-030, ALJ No.
2000-ERA-007 (ARB July 30, 2004) (Hasan I).
[5]
Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001
(7th Cir. 2005).
[6]
May 6, 2005 Recommended Decision and Order Granting Respondent’s
Motion to Dismiss (R. D. & O.).
[7]
See 5 U.S.C.A. § 557(b) (West 2007).
[8]
See Kester v. Carolina Power & Light Co., ARB No.
02-007, ALJ No. 2000-ERA-031, slip op. at 4 (ARB Sept. 30, 2003).
[9]
Honardoost v. Peco Energy Co., ARB No. 01-030, ALJ No. 2000-ERA-036,
slip op. at 4 (ARB Mar. 25, 2003).
[10]
Hasan v. Burns & Roe Enters., Inc., ARB No. 00-080, ALJ
No. 2000-ERA-006, slip op. at 6 (ARB Jan. 30, 2001).
[11]
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
[12]
Id. at 248-49, citing First Nat’l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 288-290 (1968).
[13]
“If President Bush appoints an honest and impartial Tribunal to
investigate the various United States Government agencies, the U.S. Department
of Labor (DOL) will top the list as the most EVIL, the most DISHONEST and the
most CORRUPT U.S. GOVERNMENT AGENCY.” Brief at 1.
[14]
Elsewhere he refers to the judges on the
Seventh Circuit as puppets of Judge Posner. Brief at 4, 5.
[15]
Brief at 6.
[16]
“The General Counsel of the ARB . . . working for the ARB since 1999,
is another BIASED DOL OFFICIAL . . . . [She is] an agent of Big and rich
Corporations of this Country . . . .” Brief at 3.
[17]
Hasan v. Commonwealth Edison Co., ARB Nos. 01-002, 01-003, ALJ
Nos. 2000-ERA-008, 2000-ERA-011, slip op. at 4 (ARB Apr. 23, 2001).
[18]
For example, Hasan writes, “Sangerman is Guilty of subornation of
Perjury . . . . [I]t is abundantly clear that Sangerman (respondent’s
attorney) is a BIG FRAUD, an incorrigible LIAR and a Dishonest attorney.”
January 14, 2003 Emergency Motion at 14.
[19]
Hasan v. Sargent & Lundy, ARB No. 03-078, ALJ No. 2002-ERA-032
(ARB Mar. 28, 2003) (Holding Motion to Strike Motion in Abeyance and Show
Cause) (emphasis added).
[20]
Brief at 2.
[21]
Somerson v. Mail Contractors of Amer., ARB No. 03-055, ALJ No. 2002-STA-044, slip
op. at 6 (ARB Nov. 25, 2003).
[22]
Id. at 10.
[23]
Id. at 8.
[24]
Powers v. Pinnacle Airlines, Inc., ARB No. 04-035, ALJ No. 2003-AIR-012, slip op.
at 3 (ARB Sept. 28, 2004).
[25]
R. D. & O. at 5.
[26]
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984) (distinguishing issue preclusion and claim preclusion).
[27]
See Univ. of Tenn. v. Elliot, 478 U.S.
788, 797-799 (1986) (reasoning that when an administrative agency acts in a
judicial capacity to resolve issues of fact which the parties before it have
had an adequate opportunity to litigate, application of res judicata principles
is appropriate).
[28]
Chao v. A-One Med. Servs., Inc., ARB No. 02-067, ALJ No. 2001-FLS-027,
slip op. at 6 (ARB Sept. 23, 2004); Otero County Hosp. Ass’n, ARB No.
99-038, slip op. at 7-9 (ARB July 31, 2002); Agosto v. Consol. Edison Co. of
New York, Inc., ARB Nos. 98-007, 98-152, ALJ Nos. 1996-ERA-002, 1997
ERA-054, slip op. at 7 (ARB July 27, 1999) (requiring “full and fair
opportunity” for the litigation of the issues in the prior proceeding).
[29]
March 7, 2005 Response to March 3, 2005 Order to Show Cause at 1-2.
[30]
See Montana v. United States, 440 U.S. 147, 155
(1979) (“To determine the appropriate application of collateral estoppel in
the instant case necessitates three further inquiries: first, whether the
issues presented by this litigation are in substance the same as those resolved
[in the first proceeding]”); Kidwell v. Dep’t of Army, 56
F.3d 279, 286-87 (D.C. Cir. 1995) (“When a court has decided an issue of fact
or law necessary to its judgment, that decision precludes relitigation of an
issue ‘in substance the same’ as that resolved in an earlier proceeding.”).
[31]
See Montana, 440 U.S. at 153-154 (precluding parties from
contesting issues they have already had a full and fair opportunity to litigate
“protects their adversaries from the expense and vexation attending multiple
lawsuits, conserves judicial resources, and fosters reliance on judicial action
by minimizing the possibility of inconsistent decisions.”); see also Agosto,
slip op. at 7 (holding that there must have been “full and fair
opportunity” for the litigation of the issues in the prior proceeding).
[32]
Rebuttal Brief at 9-10.
[33] Ewald
v. Virginia, No. 1989-SDW-001, slip op. at 4-5 (Sec’y Apr. 20, 1995).
[34]
Id., slip op. at 5-10.
[35]
Rebuttal Brief at 4 (“I did not receive one page of Discovery, no
hearing was conducted by ALJ Kane, from Sargent & Lundy for the above case
– how can I plead my case . . . before the ARB (this court)?”), 9-10 (“‘Issue
preclusion’ would not prevent another ALJ . . . from making a different
finding, based on his independent weighing of the evidence (after Discovery and
after Conducting a Hearing), in connection with an additional ERA claim . . .
.”).
[36]
September 3, 2002 Response to Motion to Dismiss at 1, 4.
[37]
See Young v. Schlumberger Oil Field Servs., ARB No. 00-075, ALJ
No. 2000-STA-028, slip op. at 3 (ARB Feb. 28, 2003); Haines v. Kerner,
404 U.S. 519, 520-21 (1972).
[38]
United
States ex rel. Verdone v. Circuit Court for Taylor County, 73 F.3d 669,
673 (7th Cir.1995) (per curiam) (“Even pro se
litigants, particularly one so familiar with the legal system, must expect to
file a legal argument and some supporting authority.”); Pelfresne v. Village
of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990) (citations omitted) (“A
litigant who fails to press a point by supporting it with pertinent authority,
or by showing why it is sound despite a lack of supporting authority ...
forfeits the point. We will not do his research for him.”).
[39]
See Cruz v. Am. Airlines, Inc., 356
F.3d 320, 333-334 (D.C. Cir. 2004) (citations omitted) (“Although we may
discern a hint of such an argument after a close reading of plaintiff’s reply
brief (albeit not a hint supported by both citations to authority and argument,
as is required by Federal Rule[s] of Appellate Procedure 28(a)(9)), plaintiff
was required to present, argue, and support this claim in his opening brief for
us to consider it. We are not ‘self-directed boards of legal inquiry and
research, but essentially … arbiters of legal questions presented and argued by
the parties.’”) (citations omitted).
[40]
See Dev. Res., Inc., ARB No. 02-046, slip op. at 4 (ARB Apr.
11, 2002) citing Tolbert v. Queens Coll., 242 F.3d 58, 75-76 (2d
Cir. 2001) (noting that in the Federal Courts of Appeals, it is a “settled
appellate rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived”); United
States v. Hayter Oil Co., 51 F.3d 1265, 1269 (6th Cir.
1995) (“It is not our function to craft an appellant’s arguments.”); U.S.
v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (“A skeletal ‘argument,’ really
nothing more than an assertion, does not preserve a claim [for appellate
review] . . . . Judges are not like pigs, hunting for truffles buried in
briefs.”).
[41]
R. D. & O. at 5.
[42]
29 C.F.R. § 18.40 (c).
