Filed: Sep. 20, 2001
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-10593 Summary Calendar _ NESTOR T. LAPASTORA, Plaintiff-Appellant, versus 301S SPTG/DPCE, Security Police Training Group, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas (3:97-CV-3188) _ September 20, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Nestor T. LaPastora appeals, pro se, the dismissal of his disability discrimination action. During 1994 a
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-10593 Summary Calendar _ NESTOR T. LAPASTORA, Plaintiff-Appellant, versus 301S SPTG/DPCE, Security Police Training Group, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas (3:97-CV-3188) _ September 20, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Nestor T. LaPastora appeals, pro se, the dismissal of his disability discrimination action. During 1994 an..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-10593
Summary Calendar
_____________________
NESTOR T. LAPASTORA,
Plaintiff-Appellant,
versus
301S SPTG/DPCE, Security Police Training Group,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CV-3188)
_________________________________________________________________
September 20, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Nestor T. LaPastora appeals, pro se, the dismissal of his
disability discrimination action.
During 1994 and 1995, LaPastora was employed as a civilian
security guard with the Air Force’s 301st Support Group (301st) at
the Naval Air Station Joint Reserve Base in Fort Worth, Texas. He
sustained a back injury in October 1994, resulting in a work
absence through the next month; he returned to work in late
*
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this opinion should not be published and is not precedent except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.
November. In May 1995, LaPastora accepted a $25,000 Voluntary
Separation Incentive Plan to end his employment with the Air Force.
Subsequently, LaPastora applied for disability retirement
benefits through the Office of Personnel Management (OPM). He
received a notice of approval in September 1995, but OPM stated
payment would not begin until it had obtained certain information
from LaPastora’s employing agency. The 301st provided the
requested information that November, stating LaPastora had
voluntarily resigned under an incentive program. In February 1996,
OPM informed LaPastora that it had reversed its decision.
LaPastora was afforded an opportunity to respond, which he did.
That March, OPM issued a final decision denying benefits.
LaPastora appealed the decision to the Merit Systems
Protection Board (MSPB). In August 1996, MSPB issued an initial
decision affirming OPM’s decision, concluding LaPastora had failed
to demonstrate a disability. In February 1997, MSPB denied the
petition for review and notified LaPastora of his remaining legal
channels.
LaPastora appealed the MSPB’s decision to the United States
Court of Appeals for the Federal Circuit, which affirmed. See La
Pastora v. Office of Personnel Management, No. 97-3217 (Fed. Cir.
July 28, 1997). He also filed the present action in district
court. The nub of LaPastora’s complaint is that the 301st and its
employees discriminated against him on the basis of his alleged
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medical condition by wrongfully providing information to OPM.
While LaPastora framed the action as under Title VII, the district
court, in light of LaPastora’s pro se status, construed it
liberally as a Rehabilitation Act matter. The court then dismissed
the action on a variety of grounds. LaPastora incorrectly appealed
to the Federal Circuit, which transferred the appeal to this court
in April 2001. See LaPastora v. Employing Agency, 301st SPTG/DPCE,
No. 01-1207 (Fed Cir. Apr. 23, 2001).
“An appellant’s brief must contain an argument on the issues
that are raised, in order that we, as a reviewing court, may know
what action of the district court is being complained of. See FED.
R. APP. P. 28(a)(6). There is no exemption for pro se litigants,
though we construe their briefs liberally”. Al-Ra’id v. Ingle,
69
F.3d 28, 31 (1995) (emphasis in original).
Assuming arguendo the three issues LaPastora presents for
review are properly preserved, he offers no argument with respect
to any of those issues. For the most part, he merely restates the
allegations of his complaint. The closest he comes to
substantiating his position on any issue is the following: “Whereby
the district court of Northern Texas dismisses plaintiff’s civil
cause of action without a trial, this constitutionally violates
plaintiff’s civil rights under the 14th Amendment Clause of ‘due
process’ and the ‘equal protection clause’”. LaPastora does not
explain how the dismissal violated due process or equal protection.
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He cites no authority or support for his assertion as required by
FED. R. APP. P. 28(a)(9)(A). Finally, he cites nothing in the
record that would indicate error. See
id.
LaPastora arguably raises an additional issue in his brief,
although it is not listed among his issues presented. Presumably
responding to the district court’s rulings regarding improper
defendants and insufficient service of process, he states: “The
United States government nor [sic] the department of the Air Force
or the employing agency are but one body. This were [sic] served
with services process”. Again, even assuming this issue was
properly preserved and presented, the “argument” is simply
conclusional. LaPastora offers no citation to authority or the
record to substantiate his contention. While, given his pro se
status, we can engage in a limited degree of interpolation, we
cannot craft his legal argument. Where we have nothing to review,
the issue is abandoned. See
Al-Ra’id, 69 F.3d at 31.
In the alternative, and notwithstanding the aforementioned
deficiencies, and essentially for the reasons stated in the
district court’s well-reasoned opinion, the dismissal is
AFFIRMED.
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