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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 08-60716

Summary Calendar

 

MARK MONTGOMERY,

Petitioner,

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF

LABOR,

Respondent.

 

Petition For Review of an Order of the 

United States Department of Labor

ARB Case No. 05-129

 

Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Mark Montgomery seeks review of a decision of the Department of Labor

Administrative Review Board (ARB) affirming a ruling of an Administrative Law

Judge (ALJ) that Montgomery’s dismissal by Jack in the Box was not retaliatory.

We deny the petition.

United States Court of Appeals

Fifth Circuit

F I L E D

October 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-60716

2

I

Montgomery was employed as a tractor-trailer driver for Jack in the Box,

a corporation that distributes food and related supplies to company-owned and

franchised fast-food restaurants. Montgomery worked at the company’s

distribution center in Dallas, Texas, until his dismissal in 2003.

During the course of his employment, Montgomery made a series of

complaints to Jack in the Box, including reporting broken equipment, alleging

safety violations, and alleging that Jack in the Box overworked its drivers. In

2003, Jack in the Box received a number of complaints about Montgomery’s

behavior from store managers, including complaints that he had blocked other

deliveries and refused to place pallets inside the store. Jack in the Box warned

Montgomery that he had “one last chance to straighten things out” with regard

to his violations of company policy. 

In October of 2003, Montgomery attempted to drive his 18-wheel tractortrailer into a service station to take a rest break. In doing so, Montgomery drove

the rear tires of his 18-wheeler over a median, causing the vehicle’s drive wheels

to lose contact with the ground. Montgomery called a private wrecking service,

rather than the company’s towing service, to pull the truck off the median.

Montgomery did not report the incident to Jack in the Box, despite a company

policy requiring employees to report all vehicle accidents by the end of the day.

When Jack in the Box learned of the incident, it terminated his employment for

“failure to report an accident.”

Montgomery filed a complaint with the Department of Labor, alleging that

Jack in the Box retaliated against him in violation of the Surface Transportation
No. 08-60716

 49 U.S.C. §§ 31101-31107. 2

Macktal v. Chao, 286 F.3d 822, 825 (5th Cir. 2002). 3

 5 U.S.C. § 706(2)(A); Macktal v. U.S. Dep’t of Labor, 171 F.3d 323, 326 (5th Cir. 1999). 4

 49 U.S.C. § 31105(b)(1). 5

3

Assistance Act (STAA). After holding an evidentiary hearing, the ALJ 2

recommended dismissal of Montgomery’s complaint. The ARB reviewed the

ALJ’s recommendation and issued a final decision denying all of Montgomery’s

claims. The ARB denied Montgomery’s motion for reconsideration, and this

petition for review followed.

II

We review an agency’s rulings under the standard of review established

in the Administrative Procedure Act. Under that standard, we will affirm an 3

ARB’s decision and order “unless it is arbitrary, capricious, an abuse of

discretion, or otherwise contrary to law, or unless it is not supported by

substantial evidence.”4

III

In his petition for review, Montgomery raises a number of procedural

objections to the ARB’s handling of his case. First, Montgomery argues that the

ALJ incorrectly granted Jack in the Box’s motion in limine. In that motion, Jack

in the Box argued that Montgomery should be denied recovery for any adverse

actions that took place more than 180 days prior to the filing of his STAA

complaint. Because the STAA requires a complainant to file a whistleblower

claim “not later than 180 days after the alleged violation occurred,” the ALJ did 5

not err when it granted Jack in the Box’s motion. Montgomery further

complains that he did not have fair notice of the motion and that, in the
No. 08-60716

See Batiste v. Burke, 746 F.2d 257, 258 n.1 (5th Cir. 1984). 6

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). 7

4

alternative, Jack in the Box waived any reliance on the 180-day claim-filing

window because the company did not assert it as an affirmative defense.

Because Montgomery did not raise these objections at the time of trial, however,

they are waived.6

Second, Montgomery argues that the ALJ and the ARB erred when they

failed to deem as admitted various allegations that he made in post-trial

submissions, given that Jack in the Box did not specifically deny those

allegations. Federal Rule of Civil Procedure 8(b)(6) provides that an allegation

is admitted “if a responsive pleading is required and the allegation is not

denied.” In this case, however, no allegations should have been admitted

because no responsive pleading was required after Montgomery’s post-trial

motions for a new trial. Therefore, the ALJ and the ARB properly refused to

deem Montgomery’s allegations as admitted.

Third, Montgomery contends that the ARB abused its discretion when it

denied his motion for reconsideration. The ARB characterized Montgomery’s

motion as “rehash[ing] arguments the Board has already considered and

rejected.” Montgomery provides no reason to suspect that the ARB committed

reversible error in this instance.

Fourth, Montgomery argues that the ARB violated his due process right

to a full and fair trial on the merits. Montgomery offers no argument in support

of this contention, beyond a statement that adjudicative tribunals must give

litigants a fair trial. Although we will liberally construe the briefs of pro se

litigants, arguments must be briefed to be preserved. Montgomery’s failure to 7
No. 08-60716

See FTC v. Assail, Inc., 410 F.3d 256, 267 (5th Cir. 2005). 8

See Yohey, 985 F.2d at 225. 9

5

develop this argument therefore constitutes an abandonment of the claim.

Fifth, Montgomery asserts that his constitutional right to effective

assistance of counsel was infringed during the proceedings before the ARB and

the ALJ. This claim fails because the Sixth Amendment right to counsel is

inapplicable in civil cases.

8

Finally, we need not address whether the ARB’s decision was supported

by substantial evidence. Montgomery does not brief this issue, and thus he has

abandoned the argument.9

* * *

For the foregoing reasons, we AFFIRM the judgment of the ARB.