Budri v. ARB ( 2021 )

Case: 20-60574 Document: 00515844378 Page: 1 Date Filed: 04/30/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 30, 2021
No. 20-60574
Lyle W. Cayce
Clerk
Adriano Budri,
Petitioner,
versus
Administrative Review Board, United States
Department of Labor,
Respondent.
Petition for Review of the Decision and Order of the
United States Department of Labor, Administrative Review Board
ARB Case No. 2020-0047
ALJ Case No. 2020-STA-00037
Before Higginbotham, Southwick, and Engelhardt, Circuit
Judges.
Per Curiam:*
By petition for review filed in this court on July 3, 2020, Petitioner
Adriano Budri (“Budri”) challenges the June 30, 2020 decision of the United
States Department of Labor’s Administrative Review Board (ARB). The
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60574 Document: 00515844378 Page: 2 Date Filed: 04/30/2021
No. 20-60574
ARB decision denied Budri’s administrative petition for review of an
administrative law judge’s June 18, 2020 dismissal of Budri’s fourth
complaint, which was filed on February 7, 2020, with the Department of
Labor’s Occupational Safety and Health Administration (OSHA). Budri’s
fourth OSHA complaint, which alleges claims arising under the Surface
Transportation Assistance Act (STAA), 49 U.S.C. § 31105, is based on the
same underlying facts as his prior complaints. This petition for review
constitutes Budri’s fourth appearance before this court pertaining to the
same facts.
Also before this court are almost 50 pending motions filed by Budri,
as well as Respondent’s request that this court issue an order enjoining Budri
from future filings arising from the same operative facts as his previous
claims—his employment at Firstfleet, Inc., and his February 17, 2017
termination from employment. For the reasons stated herein, we deny
Budri’s petition for review and his pending motions. We grant Respondent’s
request for entry of an order restricting future filings by Budri to the extent
stated herein and in the separate written order to be entered by the court.
I.
Budri briefly worked for Firstfleet as a commercial truck driver in
early 2017. After hiring Budri on January 25, 2017, Firstfleet fired Budri less
than a month later on February 17, 2017. In firing Budri, Firstfleet cited
instances when Budri failed to deliver a time-sensitive order, caused cargo
damage by failing to secure a load properly, and failed to report an accident
in which Budri caused a door to be torn from a trailer.
Since his February 2017 termination from employment by Firstfleet,
Budri has previously filed and subsequently appealed three prior OSHA
complaints stemming from the above-described facts. The procedural
histories of those matters are described in our August 24, 2020 opinion
2
Case: 20-60574 Document: 00515844378 Page: 3 Date Filed: 04/30/2021
No. 20-60574
affirming the dismissal of Budri’s third complaint. 1 In those OSHA
complaints, Budri alleged that (1) Firstfleet terminated his employment in
retaliation for his protected communications regarding an expired decal,
hours-of-service violations, and a defective headlight bulb, in violation of the
STAA’s whistleblower-protection provisions; and (2) Firstfleet further
violated the STAA by disclosing negative employment information about
him to Tenstreet, a company that provides hiring services to trucking
companies.
First OSHA Complaint
Budri’s first OSHA complaint, filed March 20, 2017, was dismissed
by OSHA and, subsequently, by ALJ Larry W. Price. 2 The ALJ’s February
2, 2018 dismissal was affirmed by the ARB in June 19, 2018, 3 and by this court
on April 9, 2019. 4 Budri also filed a petition for writ of certiorari in the United
States Supreme Court, which was denied on October 2019. 5
Second OSHA Complaint
While his first complaint was pending before the ALJ, Budri filed a
second OSHA complaint on January 23, 2018, which also was dismissed by
1
Budri v. Admin. Review Bd., No. 20-60073, 825 F. App’x 178, 179 (5th Cir. Aug.
25, 2020) (regarding ARB No. 2020-0021, ALJ No. 2019-STA-00071) (“Third Complt.”)
(“Third Complt.”).
2
Budri v. Firstfleet, Inc., ALJ No. 2017-STA-0086 (ALJ Feb. 2, 2018) (“First
Complt.”)
3
Budri v. Firstfleet, Inc., ARB No. 2018-0025, ALJ No. 2017-STA-0086 (ARB Jun.
19, 2018) (“First Complt.”).
4
Budri v. Admin Review Bd., No. 18-60579, 764 F. App’x 431 (5th Cir. Apr. 9, 2019)
(regarding ARB No. 2018-0025, ALJ No. 2017-STA-0086) (“First Complt.”).
5
Budri v. Admin Review Bd., 140 S. Ct. 386 (2019) (“First Complt.”)
3
Case: 20-60574 Document: 00515844378 Page: 4 Date Filed: 04/30/2021
No. 20-60574
OSHA and, on June 26, 2018, by ALJ Price. 6 Initially, on March 25, 2019,
the ARB affirmed the ALJ’s dismissal of the complaint, concluding the claim
was not timely filed within 180 days of Budri’s discovery of the alleged
violation, and thus, was untimely. 7 Later, however, on July 30, 2019, the
ARB vacated its March 25, 2019 decision for lack of jurisdiction, 8 having
discovered that Budri had timely filed suit in federal district court on
February 19, 2019, 9 that is, while the ARB appeal was pending. On October
29, 2019, the district court dismissed Budri’s suit, 10 and, on December 18,
2019, we dismissed his appeal for want of prosecution. 11
Third OSHA Complaint
While his district court action was pending, Budri filed a third OSHA
complaint, on August 30, 2019, which likewise was dismissed by OSHA and,
6
Budri v. Firstfleet, Inc., ALJ No. 2018-STA-0033 (ALJ June 26, 2018 and Aug. 1,
2018) (“Second Complt.”)
7
Budri v. Firstfleet, Inc., ARB No. 2018-0055, 2018-STA-0033 (March 25, 2019)
(“Second Complt.”).
8
Budri v. Firstfleet, Inc., ARB No. 2018-0055, 2018-STA-0033 2019 WL 3780911,
at *1 (July 30, 2019) (“Second Complt.”).
9
Budri v. Firstfleet, Inc., Case No. 3:19-cv-409-N-BH (N. D. Tex.) (“Second
Complt.”). See 49 U.S.C. § 31105(c); 29 C.F.R. §1978.114 (allowing an action for de novo
review in appropriate federal district court if no final order of Secretary has issued within
210 days of filing of complaint and there is no showing of delay due to the bad faith of the
complainant).
10
Because Budri’s STAA claim was dismissed for lack of subject matter
jurisdiction, the dismissal was without prejudice. See Budri v. Firstfleet, Inc., Case No. 3:19-
cv-409-N-BH, 2019 WL 5579971, *1 (N. D. Tex. Oct. 29, 2019) (“Second Complt.”)
11
Budri v. Firstfleet, Inc., No. 19-11203, 2019 WL 8645418 (5th Cir. 2019) (“Second
Complt.”). Budri’s appeal was dismissed because he failed to heed the court’s November
7, 2019 notice instructing that he sign and return his unsigned October 31, 2019 notice of
appeal within thirty days. Id.4
Case: 20-60574 Document: 00515844378 Page: 5 Date Filed: 04/30/2021
No. 20-60574
on December 16, 2019, by ALJ Patrick M. Rosenow. 12 On January 7, 2020,the
ARB exercised its discretion to deny review of Budri’s petition. 13 Budri then
filed a petition for review before this court on January 27, 2020. We denied
that petition on August 25, 2020. 14
Fourth OSHA Complaint
While his January 27, 2020 petition for review was pending before this
court, Budri filed his fourth OSHA complaint on February 7, 2020. It is the
fourth complaint that is the focus of the instant petition for review. OSHA
dismissed the complaint on February 28, 2020. On March 8, 2020, Budri
objected to OSHA’s finding and requested a hearing before an ALJ. Budri’s
fourth complaint asserted one allegedly new adverse action, i.e., that
sometime after June 12, 2017, Firstfleet disclosed new and additional
negative employment information about him to Tenstreet. Upon referral to
the ALJ, Budri was ordered to provide greater detail regarding his new
allegation, to which he responded with additional factual allegations
concerning the employment information previously disclosed to Tenstreet,
as well as a series of non-responsive filings.
On June 18, 2020, finding that Budri had failed to allege any new
actionable adverse activity, the ALJ dismissed Budri’s complaint for failure
to state a claim. 15 The ALJ also cited Budri’s “flagrant and defiant” litigation
12
Budri v. Firstfleet, ALJ No. 2019-STA-71 (ALJ Dec. 16, 2019) (“Third
Complt.”).
13
Budri v. Firstfleet, Inc., ARB No. 2020-0021, ALJ No. 2019-STA-00071 (ARB
Jan. 7, 2020) (“Third Complt.”).
14
Budri v. U.S. Dep’t of Labor, No. 20-60073, 825 F. App’x 178, 179 (5th Cir. Aug.
25, 2020) (regarding ARB Case No. 2020-0021, ALJ Case No. 2019-STA-00071) (“Third
Complt.”).
15
Budri v. Firstfleet, ALJ No. 2019-STA-37 (ALJ June 18, 2020) (“Fourth
Complt.”). The ALJ rejected the notion that an alleged disclosure to Budri on October 31,
5
Case: 20-60574 Document: 00515844378 Page: 6 Date Filed: 04/30/2021
No. 20-60574
conduct as an alternative ground for dismissal. 16 On June 22, 2020, the ALJ
concluded that Budri’s June 20, 2020 motion for reconsideration was moot,
given the previous filing of a notice of appeal to the ARB thereby depriving
the ALJ of jurisdiction. 17
On June 30, 2020, the ARB issued an order declining to review the
ALJ’s decision. 18 The instant petition for review followed on July 3, 2020.
Fifth and Sixth OSHA Complaints
Budri filed his fifth and sixth OSHA complaints on July 1, 2020, and
August 6, 2020, which OSHA denied. ALJ Rosenow denied Budri’s fifth
complaint on August 5, 2020. 19 On August 17, 2020, the ARB exercised its
discretion to deny Budri’s petition for review of the ALJ’s August 5, 2020
order. 20
On September 8, 2020, ALJ Rosenow denied Budri’s sixth
complaint. 21 On September 15, 2020, the ARB denied Budri’s petition for
2019, and/or his February or March 2020 discovery of a social media website, constituted
new or continuing adverse action sufficient to render his latest complaint timely.
16
Id.17
Budri v. Firstfleet, ALJ No.2019-STA-37 (ALJ June 22, 2020) (“Fourth
Complt.”).
18
Budri v. Firstfleet, Inc., ARB No. 2020-0047, ALJ No. 2020-STA-37 (ARB June
30, 2020) (“Fourth Complt.”).
19
See Budri v. Firstfleet, ALJ No. 2019-STA-71 at 3 (ALJ Aug. 5, 2020) (“Fifth
Complt.”).
20
Budri v. Firstfleet, Inc., ARB No. 2020-0021, ALJ No. 2019-STA-00071 (ARB
Aug. 17, 2020) (“Fifth Complt.”).
21
See Budri v. Firstfleet, ALJ No. 2020-STA-108 (ALJ Sept. 8, 2020) (“Sixth
Complt.”).
6
Case: 20-60574 Document: 00515844378 Page: 7 Date Filed: 04/30/2021
No. 20-60574
review. 22 To date, no petitions for review have been regarding these
complaints in this court.
II.
We review agency rulings under the standard of review established by
the Administrative Procedure Act, 5 U.S.C. § 706. Applying that standard,
we will affirm an ARB decision unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law, or . . . not supported by substantial
evidence.” Macktal v. United States DOL, 171 F.3d 323, 326 (5th Cir. 1999).
We review an agency’s interpretations of caselaw de novo and its factual
findings for substantial evidence. Ameristar Airways, Inc. v. Admin. Review
Bd., 771 F.3d 268, 272 (5th Cir. 2014).
III.
In the instant petition for review, Budri disputes the ARB’s June 30,
2020 decision on the merits and further argues that ALJ Rosenow was not
properly appointed under the Appointments Clause of the United States
Constitution, Art. II, § 2, cl.2, 23 as required by Lucia v. Securities & Exchange
22
Budri v. Firstfleet, Inc., ARB No. 2020-0065, ALJ No. 2020-STA-108 (ARB
Sept.15, 2020) (“Sixth Complt.”).
23
The Appointments Clause states:
[The President] . . . shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public Ministers
and Consuls, Judges of the Supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law; but the Congress may by Law vest
the Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments.
U.S. Const. Art. II, § 2, cl. 2.
7
Case: 20-60574 Document: 00515844378 Page: 8 Date Filed: 04/30/2021
No. 20-60574
Commission, 138 S. Ct. 2044 (2018). Citing Free Enterprise Fund v. Public
Company Accounting Oversite Board, 561 U.S. 477, 491 (2010), he also
maintains that the “for cause” removal protections of the Administrative
Procedures Act, 5 U.S.C. § 7521(a), likewise are violative of the “at will”
employment associated with the Appointments Clause.
IV.
We begin our analysis by considering the merits of the ARB’s
decision. The ALJ concluded that Budri had failed to allege any new adverse
action because “maintenance and/or re-disclosure by a third party of
information provided by an employer does not constitute new or continuous
adverse action.” We agree. Budri did not allege specific facts in his fourth
complaint pertaining to any new information disclosure by Firstfleet. Rather,
Budri’s fourth complaint merely reasserts issues raised in his prior three
complaints, which have been fully litigated and resolved in Budri’s prior
administrative and judicial proceedings. Thus, further litigation is precluded.
See Budri, 825 F. App’x at 179 (third OSHA complaint “contains no new
relevant facts, arguments, or claims not previously considered [] and rejected
[] by an ALJ, the ARB, the district court, or this Court”); Comer v. Murphy
Oil USA, Inc., 718 F.3d 460, 467 (5th Cir. 2013) (“A final judgment on the
merits of an action precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.”) (quoting Federated
Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). 24
24
Budri’s brief additionally complains regarding the ALJ’s handling of discovery.
Such matters are within the ALJ’s discretion and it is not apparent to us that any abuse of
that discretion occurred.
8
Case: 20-60574 Document: 00515844378 Page: 9 Date Filed: 04/30/2021
No. 20-60574
V.
In denying Budri’s petition for review, we do not address Budri’s
Appointments Clause challenges. Because Appointment Clause challenges
present “non-jurisdictional structural constitutional challenges,” they can be
forfeited. D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344, 351 (5th Cir. 2013)
(quoting Freytag v. Comm’r, 501 U.S. 868, 878–79 (1991)). We find such
forfeiture has occurred here, and decline to exercise our discretion to
nevertheless consider Budri’s challenges, for several related reasons. 25
25
This court has not yet addressed whether Department of Labor’s ALJs have been
properly appointed under Lucia or whether Lucia appointment challenges necessarily are
forfeited if not first presented in the underlying administrative proceeding. Many of our
sister circuits have considered these questions in the context of dismissals by the
Department of Labor’s Benefits Review Board. See, e.g., Nat’l Mines Corp v. Conley, 790 F.
App’x 716 (6th Cir. 2019); Elkhorn Eagle Mining Co. v. Higgins, 811 F. App’x 318 (6th Cir.
2020); Zumwalt v. Nat’l Steel & Shipbuilding Co., 796 F. App’x 930 (9th Cir. 2019); Turner
Bros., Inc. v. Conley, 757 F. App’x 697 (10th Cir. 2018); Energy W. Mining Co. v. Lyle ex rel.
Lyle, 929 F.3d 1202, 1206 (10th Cir. 2019).
And, less than two weeks ago, the Supreme Court determined that judicially
created “issue-exhaustion rules” did not preclude judicial review of Appointments Clause
challenges that were not first presented to Social Security Administration ALJs whose
appointments had not yet been ratified by the Social Security Administration (“SSA”)
Acting Administrator. See Carr v. Saul, No. 19-1442 (slip op. at 3, 6–10), 141 S. Ct. 1352(April 22, 2021). In support of this holding, the Supreme Court reasoned that governing
regulations “expressly” render SSA administrative proceedings “‘inquisitorial rather than
adversarial.’” Id. at 6 (quoting Sims v. Apfel, 530 U.S. 103, 110-111 (2000)). Furthermore,
the Court emphasized, “[e]ven accepting that ALJ proceedings may be comparatively
more adversarial than Appeals Council proceedings,” the scales “in the specific context of
petitioners’ Appointments Clause challenges, . . . tip . . . decidedly against imposing an
issue-exhaustion requirement[,]” because SSA ALJs are “ill-suited to address structural
constitutional challenges . . . usually fall[ing] outside [their] areas of technical expertise.”
Id. at 9. Additionally, given that ALJs are powerless to “remedy[] any defects in their own
[preratification] appointments,” such administrative efforts fall within the “consistently
recognized [] futility exception to exhaustion requirements.” Id. at 10-11. Lastly, in the
absence of an administration exhaustion requirement, first-time judicial challenges to the
ALJ appointments were not untimely. Id. at 11–12.
9
Case: 20-60574 Document: 00515844378 Page: 10 Date Filed: 04/30/2021
No. 20-60574
As an initial matter, we note that, in December 2017, the Secretary
of Labor issued a letter to ALJ Rosenow, dated December 21, 2017,
“ratify[ing] the Department’s prior appointment of you as an Administrative
Law Judge” with the “intent[] to address any claim that administrative
proceedings pending before, or presided by [DOL ALJs] violate the
Appointments Clause.” 26 Budri contends the Secretary’s letter fails to
satisfy the Appointments Clause’s requirements relative to his 2019 and
2020 proceedings before ALJ Rosenow. He fails, however, to cite controlling
legal authority supporting his assertion.
And, though the December 2017 ratification would not impact the
“for cause” removal requirements about which he complains, severance of
the offending statutory provision, if severance is possible and warranted,
appears to be the appropriate remedy. See, e.g., Seila L. LLC v. Consumer Fin.
Prot. Bureau, 140 S. Ct. 2183, 2209– 11 (2020); Free Enterprise Fund, 561 U.S.
at 508–09; Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, 1335–38
(Fed. Cir. 2019), cert. granted, 141 S. Ct. 236 (2020); Collins v. Mnuchin, 938
F.3d 553, 591–95 (5th Cir. 2019), cert. granted, 141 S. Ct. 193 (2020). In any
event, Budri has not shown the contrary to be true or addressed the
possibility of severance. See, e.g., Brock Servs., L.L.C. v. Rogillio, 936 F.3d
290, 295 (5th Cir. 2019) (“Issues not raised or inadequately briefed on appeal
are waived.”); L & A Contracting Co. v. S. Concrete Servs.,Inc., 17 F.3d 106,
113 (5th Cir. 1994) (issue was not adequately briefed where no authorities
were cited in a one page argument).
Importantly, on the current record, we do not have to decide the “forfeiture” and
“exhaustion” questions decided by our sister circuits or the Supreme Court. Rather, in this
instance, our forfeiture determination rests on broader grounds.
26
See Respondent Br., Exh. A.
10
Case: 20-60574 Document: 00515844378 Page: 11 Date Filed: 04/30/2021
No. 20-60574
Furthermore, even putting aside the Secretary’s December 2017
ratification letter, Lucia emphasizes that Appointments Clause challenges
must be timely. Importantly, although the Supreme Court decided Lucia on
June 21, 2018, and Free Enterprise in 2010, Budri’s first mention of Lucia, Free
Enterprise, the Appointments Clause, or “for cause” removal protections
was in the August 13, 2020 “Petitioner’s Motion to Take Judicial Notice”
that he filed, post-briefing, while previously before this court (regarding his
third OSHA complaint). Budri’s assertions also were repeated in the August
30, 2020 petition for panel rehearing that he filed regarding our August 25,
2020 opinion.
Referencing the many motions that Budri had filed in that proceeding,
our August 25, 2020 opinion, denying his petition for review, stated:
Budri has filed multiple motions that reassert the
arguments raised in his petition for review and also assert
additional grounds for relief beyond those argued before the
ARB or in his briefing. Although this court has granted several
of Budri’s requests for procedural relief, we decline to address
issues insufficiently briefed by Budri or raised for the first time
on petition for review. See Craven v. Dir., Office of Worker’s
Comp. Programs, 407 F. App’x 854, 859 (5th Cir. 2011) (per
curiam) (unpublished) (stating that an argument raised for the
first time on petition for review is waived) (citing Aetna Cas. &
Sur. Co. v. Dir., Office of Workers’ Comp. Programs, 97 F.3d 815,
819 (5th Cir. 1996)). 27
Our September 9, 2020 order denying Budri’s August 30, 2020
petition for rehearing added:
27
Budri v. U.S. Dep’t of Labor, No. 20-60073, 825 F. App’x 178 (5th Cir. Aug. 25,
2020) (regarding ARB Case No. 2020-0021, ALJ Case No. 2019-STA-00071) (“Third
Complt.”).
11
Case: 20-60574 Document: 00515844378 Page: 12 Date Filed: 04/30/2021
No. 20-60574
IT IS ORDERED that the petition for rehearing is
DENIED. Further, the multiple motions filed by petitioner
during the pendency of his petition for rehearing lack merit and
are also hereby DENIED. The mandate shall issue forthwith.
In the instant review proceeding—concerning Budri’s fourth OSHA
complaint—his Appointment Clause challenges were again not presented to
the ALJ or ARB prior to the ALJ’s June 18, 2020 dismissal order, the ALJ’s
June 22, 2020 order denying reconsideration, or the ARB’s June 30, 2010
decision and order. They were, however, discussed in Budri’s original and
reply briefs (dated October 5 and December 1, 2020), as well as certain of the
numerous motions that Budri has filed during the course of this proceeding.
Nevertheless, on the instant record, reflecting the numerous administrative
and judicial opportunities that Budri had to present these challenges—long
before filing the instant July 3, 2020 petition for appellate court review
regarding his fourth OSHA complaint—but simply failed to do so.
Accordingly, we, like the panel of this court addressing Budri’s January 2020
petition for review, decline to consider these assertions. 28 See also Block v.
Tanenhaus, 867 F.3d 585, 589 (5th Cir. 2017) (arguments that could have
been raised on prior appeal, but were not, are forfeited for purposes of
subsequent appeal).
In addition to his four administrative proceedings before the DOL,
Budri could have urged these challenges in the very first agency review
proceeding that he filed in this court on August 16, 2018. 29 Although Lucia
was decided just two months earlier, on June 21, 2018, briefing in the matter
28
Budri v. U.S. Dep’t of Labor, No. 20-60073, 825 F. App’x 178 (5th Cir. Aug. 25,
2020) (regarding ARB Case No. 2020-0021, ALJ Case No. 2019-STA-00071) (“Third
Complt.”).
29
Budri v. U.S. Dep’t of Labor, No. 18-60579, 764 F. App’x 431 (5th Cir. 2019)
(regarding ARB Case No. 18-025, ALJ Case No. 2017-STA-086) (“First Complt.”).
12
Case: 20-60574 Document: 00515844378 Page: 13 Date Filed: 04/30/2021
No. 20-60574
was not completed until January 2019. And, even after briefing was
completed, a letter identifying additional authority could have been
submitted, pursuant to Federal Rule of Appellate Procedure 28(j), prior to
the court’s issuance of a decision in April 2019, or in support of the petition
for panel rehearing that Budri thereafter filed.
Presumably, Budri also could have urged his challenges as part of his
appeal (associated with his second OSHA complaint) to this court that was
filed on October 31, 2019, but then dismissed on December 18, 2019, for want
of prosecution. 30 And, finally, Budri could have sufficiently briefed these
assertions (including an explanation for why they were being asserted, for the
first time, in this court), in connection with the petition for review that he
filed in this court on January 2020. 31
Instead, on the record before us, it is evident that Budri has instead
chosen to do things in circuitous fashion, seemingly employing a “squeaky
wheel” or “wear them down” legal strategy characterized by quantity,
repetition, and obstinance, rather than quality, logic, and prudence, with little
regard for legal requirements, efficiency, or conservation of resources. It
likewise is apparent that Budri also seeks to utilize his pro se status as both a
shield and sword thereby exhibiting a complete lack of respect for the legal
process and those who strive to proceed in a manner that is expeditious, fair,
and ethical. 32 Budri’s written submissions are extremely repetitive, replete
30
Budri v. Firstfleet, Inc., No. 19-11203, 2019 WL 8645418 (5th Cir. 2019) (“Second
Complt.”).
31
Budri v. U.S. Dep’t of Labor, No. 20-60073, 825 F. App’x 178 (5th Cir. Aug. 25,
2020) (regarding ARB Case No. 2020-0021, ALJ Case No. 2019-STA-00071) (“Third
Complt.”).
32
For instance, the DOL attorney representing respondent reports that receiving
“upwards of 950 emails” from Budri since July 2018. See Respondent Br., at 22 n. 11.
13
Case: 20-60574 Document: 00515844378 Page: 14 Date Filed: 04/30/2021
No. 20-60574
with vague, conclusory, and unclear assertions, and lack citations to pertinent
legal authority, the administrative record, and other identifying information.
Furthermore, Budri’s numerous motions for the most part address
substantive issues urged as part of his petition for review and quite likely are
designated as motions in order to avoid the briefing requirements set forth in
Federal Rules of Appellate Procedure and the restrictions on the
supplemental letter submissions permitted by Federal Rule of Appellate
Procedure 28(j). Nor is Budri’s filing of numerous motions unique to the
instant proceeding. He filed more than 20 motions in the proceeding
instituted before this court regarding this third OSHA complaint, 33 and more
than 9 in the proceeding regarding his first OSHA complaint. 34 Notably, the
motion totals for Budri’s prior proceedings before this court exclude motions
addressing purely administrative matters such as those seeking an extension
of time or to exceed page limitations.
Even worse, Budri persists in this pursuit despite have been warned
multiple times, including by this court, against repetitive and abusive
litigation and wasting of resources. Indeed, in concluding that dismissal of
Budri’s fourth OSHA complaint was warranted as a sanction for failure to
comply with court orders, as well as for failure to state a claim, AJL Rosenow
reported:
A strong argument could be made that the very act of
filing this complaint constituted no more than an attempt to
vex Respondent, given that nothing related to his three
previous filings could have given any reasonable person cause
33
Budri v. U.S. Dep’t of Labor, No. 20-60073, 825 F. App’x 178, 179 (5th Cir. Aug.
25, 2020) (regarding ARB Case No. 2020-0021, ALJ Case No. 2019-STA-00071) (“Third
Complt.”).
34
Budri v. U.S. Dep’t of Labor, No. 18-60579, 764 F. App’x 431 (5th Cir. 2019)
(regarding ARB Case No. 18-025, ALJ Case No. 2017-STA-086) (“First Complt.”).
14
Case: 20-60574 Document: 00515844378 Page: 15 Date Filed: 04/30/2021
No. 20-60574
to believe he might have a good faith basis for filing a fourth.
However, even Complainant understood that he was
disregarding my orders in the manner in which he litigated his
claim. Those orders were specifically designed to help him
clearly articulate his allegations and further the interests of fair,
but efficient, litigation. They were intended to prevent the
waste of judicial resources in a time when a national health
emergency made managing litigation and adjudicating disputes
more difficult than ever. He filed dozens of documents and
motions in direct defiance of my order. He did so using email
addresses he was specifically told not to use.
His actions resulted in a significant drain on resources
that could have been better used in the service of other litigants
with legitimate disputes, who did behave reasonably and in
conformance with court orders. Thus, Complainant interfered
significantly with the judicial process.
Similarly, Complainant’s conduct, perhaps
intentionally, prejudiced Respondent by forcing it to spend
time and money to respond to a frivolous claim and frivolous
filings within that claim. Even allowing for Complainant’s
status as a self-represented litigant and the possibility that he is
simply unable to understand the legal principles involved, the
record is clear that he acted in bad faith in terms of intentionally
filing documents contrary to my specific orders. Those orders
were clear and required neither legal training nor extraordinary
intellectual acumen to comprehend. Indeed, he clearly did
comprehend them and elected to ignore them.
Every adjudicative authority he has attempted to invoke
has instructed him that he is not entitled to any relief. Indeed,
one court threatened him with sanctions if he returned with any
claim related to the same employment issue. Consequently,
the record allows no conclusion other than that he is acting in
culpable bad faith. Although he may subjectively believe he
was wronged and refuse to believe the law denies him justice,
he appears to equally believe that his status as a victim relieves
15
Case: 20-60574 Document: 00515844378 Page: 16 Date Filed: 04/30/2021
No. 20-60574
him of the obligation to comply with procedural rules and
orders. His repeated complaints and threats demonstrate that
he also fails to appreciate that his is not the only case pending
within the Department of Labor.
If the district court decision threatening sanctions was
not enough to put him on notice, I also specifically warned him
on multiple occasions of the consequences of noncompliance.
His conduct over the years of litigation of his multiple claims
also clearly show that any lesser sanction short of dismissal
would serve no useful purpose. Respondent’s request for
additional sanctions is not unreasonable, but beyond the
authority provided in the statute and the applicable regulations.
All of the relevant factors weigh in favor of dismissal.
Therefore, the complaint is denied for both
Complainant’s failure to state a claim upon which relief can be
granted and his flagrant and defiant actions. 35
Given the foregoing, we decline to entertain Budri’s Appointments Clause
challenges. See Freytag, 501 U.S. at 894–95 (Scalia, J., conc.) (“‘Forfeiture’ is
‘not a mere technicality and is essential to the orderly administration of
justice.’”) (quoting 9 C. Wright & A. Miller, Federal Practice
and Procedure § 2472, p. 455 (1971)).
VI.
As discussed above, Budri has filed approximately 50 motions in this
matter, most of which are styled “Motion to Take Judicial Notice” and
simply expound upon or repeat matters addressed in Budri’s briefs or other
motions. Regarding these, we are aware of the motions and their content.
Otherwise, Budri’s pending motions concern matters adequately addressed
35
See Budri v. Firstfleet, ALJ No. 2019-STA-37 (ALJ June 18, 2020) (“Order of
Dismissal”) at 9-11.
16
Case: 20-60574 Document: 00515844378 Page: 17 Date Filed: 04/30/2021
No. 20-60574
by our treatment of the issues raised in Budri’s petition for review. Thus, all
of Budri’s pending motions are DENIED.
VII.
Respondent’s brief includes a request that we issue an order enjoining
Budri from future filings arising from the same operative facts as his previous
claims—his employment at Firstfleet and his February 17, 2017 termination.
“‘Federal courts have inherent powers which include the authority to
sanction a party or attorney when necessary to achieve the orderly and
expeditious disposition of their dockets.’” Matter of Carroll, 850 F.3d 811,
815 (5th Cir. 2017) (quoting Scaife v. Associated Air Ctr. Inc., 100 F.3d 406,
411 (5th Cir. 1996) (citation omitted); see also Citizens Bank & Tr. Co. v.
Case (In re Case), 937 F.2d 1014, 1023 (5th Cir. 1991). “Such powers may be
exercised only if essential to preserve the authority of the court and the
sanction chosen must employ the least possible power adequate to the end
proposed.”Nat’l Gas Pipeline Co. of Am. v. Energy Gathering, Inc.,
86 F.3d 464, 467 (5th Cir. 1996) (quoting Anderson v. Dunn, 19 U.S. 6 Wheat.
204 (1821)). A court must make a specific finding of bad faith in order to
impose sanctions under its inherent power. See Chaves v. M/V Medina Star,
47 F.3d 153, 156 (5th Cir. 1995). Federal courts also have authority to enjoin
vexatious litigants under the All Writs Act, 28 U.S.C. § 1651. Matter of
Carroll, 850 F.3d at 815 (citing Newby v. Enron Corp., 302 F.3d 295, 302 (5th
Cir. 2002)).
“When considering whether to enjoin future filings, the court must
consider the circumstances of the case, including four factors:”
(1) the party's history of litigation, in particular whether
he has filed vexatious, harassing, or duplicative lawsuits; (2)
whether the party had a good faith basis for pursuing the
litigation, or simply intended to harass; (3) the extent of the
17
Case: 20-60574 Document: 00515844378 Page: 18 Date Filed: 04/30/2021
No. 20-60574
burden on the courts and other parties resulting from the
party's filings; and (4) the adequacy of alternative sanctions.
Matter of Carroll, 850 F.3d at 815 ((citing Baum v. Blue Moon Ventures, LLC,
513 F.3d 181, 189 (5th Cir. 2008)). Pro se litigants are not excluded from such
sanctions. Id. (citing Farguson v. MBank Hous., N.A., 808 F.2d 358, 359 (5th
Cir. 1986)).
Of course, “[n]otice and a hearing are required if the district court sua
sponte imposes a pre-filing injunction.” Qureshi v. United States, 600 F.3d
523, 526 (5th Cir. 2010) (quoting Baum, 513 F.3d at 189); see also Baum, 513
F.3d at 193 (“[Appellant] was given notice and an opportunity to be heard
regarding the imposition of the pre-filing injunction, which satisfies the
requirements of due process in this case.”). Here, a pre-filing injunction is
not contemplated sua sponte but instead is considered upon the request of
Respondent as set forth and discussed on pages 20-23 of its brief. Budri has
responded in his reply brief.
VIII.
We have determined that the issuance of an order establishing certain
restrictions and requirements for future filings in this court by Budri is
warranted for the same reasons that we have declined to consider Budri’s
forfeited Appointments Clause challenges and denied Budri’s many pending
motions. Accordingly, as will also be set forth in a separate written order, IT
IS ORDERED that:
(1) Any future filings in this court by Adriano Budri (“Budri”), except
briefs filed in strict compliance with the Federal Rules of Appellate
Procedure, must not exceed 5 pages in length unless prior leave of court is
sought and granted upon good cause shown. Any such request for leave must
itself be limited to no more than 5 pages in length.
18
Case: 20-60574 Document: 00515844378 Page: 19 Date Filed: 04/30/2021
No. 20-60574
(2) Unless otherwise ordered by this court, no more than three
motions may be filed in any future proceeding in this court to which Budri is
a party. Additionally, all motions filed by Budri must strictly comply with the
Federal Rules of Appellate Procedure, as well as the Fifth Circuit Rules and
Internal Operating Procedures.
(3) Any future filings in this court by Budri must include proper
citations of legal authority and proper citations to the applicable court or
agency records, including pertinent case names, docket numbers, dates of
filing or issuance of orders, decisions, and any other relevant documents, as
well as all pertinent page numbers.
(4) Budri must file a copy of the above-referenced separate written
order in any future proceedings instituted in this court relating in any way to
his 2017 employment by Firstfleet and/or his termination from that
employment.
(5) Any material violations of the provisions of this court’s order(s)
shall result in appropriate sanctions, including the striking of pleadings,
dismissal, and/or the imposition of substantial monetary sanctions.
(6) Any future filings in this court by Budri must include a signed
certification by Budri confirming that the filing is made in good faith, is not
repetitive of a prior filing, and that Budri understands that any material
violations of the provisions of this court’s order(s) shall result in appropriate
sanctions, including the striking of pleadings, dismissal, and/or the
imposition of substantial monetary sanctions.
IX.
As stated herein, the petition for review is DENIED and all pending
motions are DENIED. We GRANT Respondent’s request for entry of an
19
Case: 20-60574 Document: 00515844378 Page: 20 Date Filed: 04/30/2021
No. 20-60574
order restricting future filings by Petitioner Budri to the extent stated herein
and in the separate written order to be issued by this court.
20