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Gallagher v. Frank, 93-2152 (1994)

Court: Court of Appeals for the First Circuit Number: 93-2152 Visitors: 8
Filed: Jun. 10, 1994
Latest Update: Mar. 02, 2020
Summary: June 10, 1994 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 93-2152 EDWARD GALLAGHER, Plaintiff, Appellant, v. ANTHONY M. FRANK, POSTMASTER GENERAL OF THE UNITED STATES, Defendant, Appellee. P. 10(c) for approval by the -2- district court.
USCA1 Opinion












June 10, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________


No. 93-2152


EDWARD GALLAGHER,

Plaintiff, Appellant,

v.

ANTHONY M. FRANK, POSTMASTER GENERAL OF THE UNITED STATES,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________

____________________

Before

Torruella, Cyr and Stahl,
Circuit Judges.
______________

____________________

Edward Gallagher on brief pro se.
________________
Donald K. Stern, United States Attorney, and Cheryl L. Conner,
_______________ _________________
Assistant United States Attorney, on brief for appellee.


____________________


____________________




















Per Curiam. Following execution of a settlement
___________

agreement in this Title VII suit, plaintiff Edward Gallagher

sought to disavow the agreement on the ground that his trial

attorney had lacked authorization to settle the suit on the

agreed terms. After conducting a status conference attended

by plaintiff and counsel, the district court rejected this

claim, finding that plaintiff's attorney "had the proper

authority to settle his case." Plaintiff now seeks to

challenge this determination. He voices no complaint as to

the format of the conference and, indeed, it readily appears

that he was afforded "a fair opportunity to have his say."

Michaud v. Michaud, 932 F.2d 77, 81 (1st Cir. 1991). Rather,
_______ _______

his cursory argument on appeal appears to be that the court's

finding was clearly erroneous.

We are unable meaningfully to evaluate this claim on the

basis of the record presented. If the status conference was

recorded, plaintiff was obligated under Fed. R. App. P. 10(b)

& 11(a) to order a transcript. See, e.g., Valedon Martinez
___ ____ ________________

v. Hospital Presbiteriano de la Communidad, Inc., 806 F.2d
_______________________________________________

1128, 1135 (1st Cir. 1986) ("We have held repeatedly that we

will not review a claim of error if the appellant has failed

to include a transcript of the pertinent proceedings in the

record on appeal."). Alternatively, if the conference was

not recorded, plaintiff could have prepared a "statement of

the evidence" under Fed. R. App. P. 10(c) for approval by the



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district court. See, e.g., Barilaro v. Consolidated Rail
___ ____ ________ _________________

Corp., 876 F.2d 260, 263-64 (1st Cir. 1989). In light of his
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failure to pursue either course, "the consequences of any

insufficiency [in the record] properly fall on the

appellant." Id. at 263. On the basis of the meager record
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before us, see, e.g., Silva v. Witschen, ___ F.3d ___, ___
___ ____ _____ ________

n.9, No. 93-1720 (1st Cir. 1994) (despite incomplete record,

appellate court reviews merits as record allows), we perceive

no basis for disturbing the district court's determination.

Affirmed.
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Source:  CourtListener

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