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Lapastora v. 301S SPTG/DPCE, 01-10593 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-10593 Visitors: 16
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
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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this opinion should not be published and is not precedent except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


                                        2
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.


                                      3
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.




                                     4

Source:  CourtListener

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