John Edmond v. United States Postal Service General Counsel

953 F.2d 1398, 293 U.S. App. D.C. 298, 1992 U.S. App. LEXIS 1507, 1992 WL 21863

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 11, 1992
• Docket: 90-5071
• Status: Published

Opinions

ORDER

PER CURIAM.

The Suggestion for Rehearing En Banc of appellee Popkin has been circulated to the full Court. No member of the Court requested the taking of a vote thereon. Upon consideration of the foregoing, it is

ORDERED, by the Court en banc, that the Suggestion is denied.

Separate opinion filed by Circuit Judge EDWARDS, concurring in the denial of rehearing en banc.

Separate opinion filed by Circuit Judge RUTH B. GINSBURG, concurring in the denial of rehearing en banc.

Separate opinion filed by Circuit Judge SILBERMAN, concurring in the denial of rehearing en banc.

EDWARDS, Circuit Judge,

with whom RUTH B. GINSBURG, Circuit Judge, concurs, concurring in the denial of suggestion for rehearing en banc:

John Edmond and Pamela Lyles, the appellants in this case, sued Arnold Popkin, claiming that he was part of a wide-ranging conspiracy to violate their civil rights. In April, 1988, the District Court dismissed Popkin for lack of personal jurisdiction before any discovery had been taken. In April, 1989, appellants moved to rejoin Pop-kin and attached to this motion an affidavit by Dr. Joseph Serian. Serian claimed that he was telephoned by Popkin and that Pop-kin “repeatedly called Pamela Lyles and John Edmond ‘thieving niggers,’ ” and “repeatedly stated that [Popkin was] determined to put Pamela Lyles and John Edmond behind bars.” The District Court never ruled on the motion, and we held on appeal that this failure to rejoin Popkin was an abuse of discretion, given the specific and nonspeculative allegations in the Serian Affidavit. 949 F.2d at 425.

Appellee Popkin now argues that the April, 1989, motion was not served on him. The motion appears in the District Court record, but Popkin points to the whiting-out of his name as “proof” of this putative failure of service. However, the District Court never found that service had indeed failed. If Popkin had properly raised this issue in his appellate brief, the panel could have remanded for fact-finding. Yet, the issue was not properly raised, either by Popkin or any other party to this litigation. It would therefore wholly subvert the judicial process for this court to grant rehearing en banc based on a putative “fact” that never has been verified pursuant to any appropriate judicial determination.

The “Statement of Facts” in Popkin’s brief to the panel asserted that the motion to rejoin him “was mailed only to counsel for the federal defendants.” Brief of Ap-pellee Arnold Popkin at 7. But this claim was not pursued in the “Argument” portion of the brief. It is the law of this circuit that a mere assertion of fact, in the introductory part of a brief, does not adequately raise a legal argument predicated on those facts. As we stated in Rollins Environmental Services v. ERA, 937 F.2d 649 (D.C.Cir.1991), if a litigant means to raise a particular claim in his brief as a basis for judgment on appeal, he is “obligated to say precisely that in [his] opening brief and to include an argument, with citations to authorities in [his] favor.” Id. at 653 n. 2. We “do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties” before us. Golden Pacific Bancorp v. Clarke, 837 F.2d 509, 513 (D.C.Cir.) (Silberman, J.) (internal quotation omitted) (justifying appellate waiver), cert. denied, 488 U.S. 890, 109 S.Ct. 223, 102 L.Ed.2d 213 (1988); see also McBride v. Merrell Dow & Pharmaceuticals, 800 F.2d 1208, 1211 (D.C.Cir.1986) (same).

The “Argument” section of Popkin’s brief makes only one utterly obscure reference to the putative failure of service:

The failure of Mr. Edmond and Ms. Lyles to file a Rule 60(b)(2) motion also precludes their reliance now on the affidavit submitted by Joseph S. Serian, in this appeal of the dismissal of the claims against Mr. Popkin. The Serian affidavit still did not establish the existence of a conspiracy that would support the exercise of jurisdiction over Mr. Popkin. In any event, the affidavit is not part of the record in connection with the plaintiffs’ appeal of the District Court’s April 6, 1988 and September 30, 1988 dismissal orders as to Mr. Popkin.

Brief of Appellee Arnold Popkin at 16 (citation to record omitted). This paragraph is located in the middle of Popkin’s Rule 60 argument. The paragraph itself begins with that argument, and then evaluates the merits of the Serian Affidavit. Only in the last sentence does Popkin assert that “the affidavit is not part of the record,” and this afterthought is at best crucially ambiguous and at worst totally beside the point. The sentence says only that the Serian Affidavit is putatively “not part of the record in connection with the plaintiffs’ appeal of the District Court’s April 6, 1988 and September 30, 1988 dismissal orders as to Mr. Popkin.” But appellants were not merely challenging those two orders. They were also claiming that the District Court should have issued a third order rejoining Popkin after the Serian Affidavit was filed. And the last sentence of Popkin’s quoted paragraph does not state that the Serian Affidavit was “not part of the record” in connection with the District Court’s failure to rejoin Popkin.

The court’s decision in Rollins makes it absolutely clear that, unless a legal argument is appropriately identified as such— appearing in a section of the brief devoted to that argument and not as an obscure or passing reference under an unrelated heading, with citations to authorities in its favor — the argument is waived. Popkin’s alleged failure-of-service “argument” does not even come close to meeting the Rollins standard. An obscure reference at the end of a paragraph in the middle of another argument hardly prompted a panel hearing, let alone a rehearing. We cannot tell whether an “injustice” was done to Popkin, because we do not know whether the motion to rejoin was served on him. In any case, such purported “injustice” would be the ordinary consequence of appellate waiver.