Syed M.a. Hasan v. United States Department of Labor

CLD-297 NOT PRECEDENTIAL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

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Hasan had sent letters to Enercon on February 21st and March 19th which1
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 based1
on Enercon’s recruiting advertisements after February 21st, there were available jobs for

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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.

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