2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-6-2010

Syed Hasan v. United States Dept of Labor

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1288

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Recommended Citation

"Syed Hasan v. United States Dept of Labor" (2010). 2010 Decisions. Paper 489.

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CLD-297 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1288

___________

SYED M.A. HASAN,

 Petitioner

v.

UNITED STATES DEPARTMENT OF LABOR,

 Respondent

ENERCON SERVICES INC.,

 Intervenor

____________________________________

On Petition for Review of a Final Decision and Order of the

Administrative Review Board for the United States Department of Labor

(ARB Case No. 04-045)

____________________________________

Submitted for Possible Summary Action Pursuant to

Third Circuit LAR 27.4 and I.O.P. 10.6

September 23, 2010

Before: BARRY, FISHER and GREENAWAY, Jr., Circuit Judges.

(Filed: October 6, 2010 )

_________

OPINION

_________

PER CURIAM
Hasan had sent letters to Enercon on February 21st and March 19th which 1

requested that Enercon not discriminate against him for being a whistleblower. He filed

his complaint on May 21, 2003.

2

Syed Hasan petitions for review of a decision of the Administrative Review Board

(ARB). For the reasons below, we will summarily deny the petition for review.

The procedural history of this case and the details of petitioner’s claims are well

known to the parties and need not be discussed at length. Briefly, in May 2003, Hasan

filed a complaint under the Energy Reorganization Act (ERA) alleging that he had not

been hired as an engineer by Intervenor Enercon based on his past whistleblowing

activities. The Administrative Law Judge (ALJ) recommended granting summary

judgment in favor of the respondent and denying the complaint. On May 18, 2005, the

ARB accepted the recommendation and denied Hasan’s complaint. Hasan did not file a

petition for review from the ARB’s May 2005 decision. Over four years later, on

November 4, 2009, Hasan filed a motion for reconsideration. The ARB denied the

motion on January 13, 2010, on the grounds that the motion was not filed within a

reasonable time and because Hasan had given no reason to justify reconsideration. Hasan

filed a timely petition for review. We ordered Hasan to show cause why the petition

should not be summarily denied.

In his motion for reconsideration, Hasan argued that the ARB overlooked the

period from February 21, 2003, until May 21, 2003. He appears to be arguing that based 1

on Enercon’s recruiting advertisements after February 21st, there were available jobs for
3

which he was not considered. However, the ALJ found that it was undisputed that

Enercon did not hire anyone in the civil/structural engineering divisions between

January 23, 2003, and May 21, 2003. Hasan described the ARB’s failure to consider this

issue as a “legal blunder” and contended that he had informed the ARB in his brief in

2004 that Enercon used an informal hiring process. He is simply seeking to relitigate the

merits of his claims which were rejected four years before his motion for reconsideration

was filed.

We need not address the question of whether the ARB has the power under the

ERA to reconsider its rulings. Even if the ARB does have the power, its refusal to

reconsider its ruling four years later for the reasons argued by Hasan was not arbitrary,

capricious, or an abuse of discretion. See 5 U.S.C. § 706(2)(A).

Summary action is appropriate if there is no substantial question presented in the

petition. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the ARB, we will summarily deny the petition for review. See Third Circuit I.O.P. 10.6. 

The order to show cause is discharged.