McCarthy v. DeJoy ( 2022 )

20-3600-cv
McCarthy v. DeJoy
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 22nd day of February, two thousand twenty-two.
PRESENT:
BARRINGTON D. PARKER,
SUSAN L. CARNEY,
BETH ROBINSON,
Circuit Judges.
_____________________________________
Mark McCarthy,
Plaintiff-Appellant,
v. 20-3600
Louis DeJoy, Postmaster General
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: MARK MCCARTHY, pro se, Cape
Vincent, NY.
FOR DEFENDANT-APPELLEE: KAREN FOLSTER LESPERANCE
(Emer M. Stack, on the brief), for
Carla B. Freedman, United States
Attorney for the Northern District
of New York, Albany, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Hurd, J.; Baxter, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the September 16, 2020 judgment of the district court is AFFIRMED.
Plaintiff-Appellant Mark McCarthy, proceeding pro se, sued the Postmaster General of the
United States alleging retaliation and discrimination on the basis of sex and disability under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. McCarthy—who worked for the
United States Postal Service (“USPS”) in Dexter, New York—alleged that he was not promoted
to the position of postmaster of the Dexter office due to discriminatory conduct and retaliation.
The district court granted the Postmaster General’s motion to dismiss the complaint on the basis
of insufficient service of process under Federal Rule of Civil Procedure 12(b)(5) and failure to
state a claim under Rule 12(b)(6). McCarthy now appeals. We assume the parties’ familiarity
with the underlying facts, procedural history, and arguments on appeal, to which we refer only as
necessary to explain our decision to affirm.
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),
construing the complaint liberally, accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282
F.3d 147, 152 (2d Cir. 2002). 1 We review a Rule 12(b)(5) dismissal for insufficient service of
process for abuse of discretion. Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).
1
Unless otherwise noted, in quoting case law this Order omits all alterations, citations, footnotes,
and internal quotation marks.
2
While we “liberally construe pleadings and briefs submitted by pro se litigants, reading
such submissions to raise the strongest arguments they suggest,” McLeod v. Jewish Guild for the
Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam), pro se appellants still must comply with our
procedural rules and precedent. McCarthy has failed to do so here. The shortcomings in his brief
are not merely technical oversights; they effectively preclude meaningful substantive
consideration of his appeal and amount to a waiver of any challenge to the district court’s dismissal
of his complaint.
First and most importantly, McCarthy’s brief on appeal does not address the grounds on
which the district court dismissed his complaint. Federal Rule of Appellate Procedure 28(a)
requires all appellants “to provide the court with a clear statement of the issues on appeal.” Moates
v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (per curiam); see also Fed. R. App. P. 28(a)(8)(A)
(requiring appellant briefs to include an argument section with appellant’s “contentions and the
reasons for them, with citations to the authorities and parts of the record on which the appellant
relies”). Although we afford pro se litigants “some latitude in meeting the rules governing
litigation,” we “normally will not[] decide issues that a party fails to raise in his or her appellate
brief.” Moates, 147 F.3d at 209; see also Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632–33
(2d Cir. 2016). McCarthy’s brief on appeal does not refer to the district court’s reasoning or
conclusions that (1) he had improperly effected service by failing to timely serve the second
amended complaint, and (2) he did not allege sufficient facts to state a plausible Title VII claim.
As a result, we treat any such challenges on appeal as waived. See LoSacco v. City of Middletown,
71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error for an appellant
proceeding pro se, especially when he has raised an issue below and elected not to pursue it on
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appeal.”).
To the extent that McCarthy attempts to raise new arguments in his appellate brief, they
are either insufficiently developed for our consideration or appropriately treated as waived because
he failed to raise them before the district court. McCarthy generally alleges that the district court
committed mistakes, but he does not describe the mistakes in any detail or cite case law or the
record to support his conclusions. He further asserts that the district court judge was biased, but
he does not refer to any specific acts reflecting bias or explain how such acts affected the district
court’s decision to dismiss his complaint. He mentions briefly that the Equal Employment
Opportunity Commission (“EEOC”) “found that the discrimination against [him] was continuous
and was a mixed case,” but his briefing does not point to any EEOC findings in the record, identify
any facts supporting an inference of continuous discrimination, or explain what “a mixed case” is
and how that would affect the district court’s decision. Appellant’s Br. at 5. Besides asserting
in passing that the discrimination was “continuous” and that people at the USPS are promoted
“because of who they know,” McCarthy’s brief does not raise any argument or point to any facts
that he presented to the district court concerning his claims. Appellant’s Br. at 5, 7. Without
more, his assertions do not represent “identifiable arguments” sufficient to satisfy Rule 28(a),
Terry, 826 F.3d at 633, or to allow us to give them substantive review. We ordinarily decline to
address issues that an appellant does not raise or raises only in passing, and we therefore do so
here. See Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir.
2013); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
The arguments that McCarthy raises for the first time on appeal include (1) asserting
violations of the Rehabilitation Act; (2) arguing that the district court should have “shar[ed]
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jurisdiction with the Merit Systems Protection Board,” a quasi-judicial executive branch agency
that reviews certain types of federal employee appeals; and (3) challenging USPS’s
accommodations for disabled veterans. Appellant’s Br. at 5–8. “It is a well-established general
rule that an appellate court will not consider an issue raised for the first time on appeal,” unless
considering the issue is “necessary to avoid a manifest injustice.” In re Nortel Networks Corp.
Sec. Litig., 539 F.3d 129, 132–33 (2d Cir. 2008). McCarthy does not argue—and cannot show,
based on the record—that applying our waiver rule to his new arguments on appeal would result
in “manifest injustice.” Id. at 133. Thus, we treat those arguments as waived.
In sum, McCarthy does not raise any issues or arguments that are properly before this court
on appeal. 2 Accordingly, we affirm the district court’s dismissal of his complaint. 3
2
On February 8, 2022, one week before the oral argument in this case, McCarthy filed 897 pages
of supplemental documents in this court. The documents appear to relate primarily to prior EEOC
proceedings. We decline to give these documents any substantive consideration. McCarthy did
not move to supplement the record with these documents, and even if we were to construe his
submission as such a motion, we would deny it because McCarthy has not shown that they were
part of the trial court record. See Int’l Bus. Machines Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir.
1975) (“Filing at the trial court level with a view to making a record is crucial because, absent
extraordinary circumstances, federal appellate courts will not consider rulings or evidence which
are not part of the trial record.”).
3
Even if we were to excuse McCarthy’s waiver and consider the merits of McCarthy’s claims
insofar as we understand them, we discern no error in the district court’s analysis. The district
court acted within its discretion when it concluded that McCarthy’s complaint was subject to
dismissal under Rule 12(b)(5) because he had not met his burden of proving that he adequately
served the second amended complaint. See Dickerson, 604 F.3d at 752. In addition, the district
court correctly concluded that McCarthy did not allege any facts to show that his employer took
adverse action against him due to his sex or disability rather than other causes; instead, he alleged
facts suggesting that his employer engaged in favoritism based on other factors. Likewise, he did
not allege any facts to show that the adverse employment actions were taken in retaliation for his
opposing or reporting unlawful discrimination. For these reasons, even if McCarthy had not
waived his arguments through his briefing, and even if he had properly delivered, or “served,” the
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* * *
We have considered all of McCarthy’s remaining arguments and find in them no basis for
reversal. For the reasons set forth above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
summons and second amended complaint in the way the law requires, he has not alleged facts that
would entitle him to any relief.
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