                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            SEP 1 2004
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    EDWARD J. THOMPSON,

                  Plaintiff-Appellant,

    v.                                                    No. 03-1472
                                                    (D.C. No. 01-S-21 (OES))
    LOUIS CALDERA, Secretary of the                        (D. Colo.)
    Department of the Army,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Plaintiff appeals the district court’s entry of summary judgment for

defendant on plaintiff’s employment discrimination claims and alleged violations


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and Privacy Act,

5 U.S.C. § 552a. Based on our review of the parties’ arguments and according

appropriate consideration to plaintiff’s pro se status, we affirm.


                                     Background

      Plaintiff was a civilian employee of the Department of the Army at the

former Fitzsimons Army Medical Center (Fitzsimons) in Colorado. Pursuant to a

congressionally mandated closure of the facility in 1995, a three-stage reduction-

in-force (RIF) procedure was conducted to reduce the workforce first from 1300

to about 400, second to 215 and finally to fifteen employees. Although the

primary goal of the RIF was to abolish jobs and close the facility, early retirement

incentives and re-employment efforts were also offered.

      The stages of the RIF involved a complicated combination of

recommendations from department superiors, computer programming interfaced

with the civilian personnel record system, and ultimately human decision making

regarding separation or retention of individual employees. The system

incorporated tenure groups and subgroups, permitting certain employees to

“bump” others, depending on grade, type of service, and veteran status, as well as

to “retreat” to other positions, so long as certain job qualifications were met.

Plaintiff was notified in February of 1996 that he would be separated the

following February. That date was extended to April of 1997, but rather than be

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separated, plaintiff retired. He appealed his retirement to the Merit Systems

Protection Board (MSPB), which found his separation was not the result of

discrimination. This decision was affirmed by the Equal Employment

Opportunity Commission’s Office of Federal Operations.


                                  District Court Proceedings

       Plaintiff then filed suit in federal court alleging claims of discrimination

(age, race, and gender),   1
                               violations of the FOIA and the Privacy Act, as well as

claims of prohibited personnel practices in violation of the False Claims Act

(FCA) and Title 5 of the Code of Federal Regulations. Following a successful

partial motion to dismiss, the district court granted defendant’s motion for

summary judgment on plaintiff’s claims of discrimination and alleged violations

of the FOIA and the Privacy Act.

       The assigned magistrate judge considered the discrimination claims under

the burden-shifting analysis set forth in     McDonnell Douglas Corp. v. Green   ,

411 U.S. 792, 802-05 (1973), as modified by the RIF framework.          See Vol. II,

doc. 164 at 7-8. Thus, plaintiff was required to show that (1) he was within the

protected group, (2) he performed satisfactory work and (3) he was discharged



1
      The race and gender claims were asserted under Title VII of the Civil
Rights Act; the age discrimination charge was apparently pursuant to the Age
Discrimination in Employment Act (ADEA).

                                              -3-
despite adequate work, and (4) that the record contained evidence that defendant

intended to discriminate against him in its RIF decision. A plaintiff can meet this

fourth element by showing circumstances under which defendant could have

retained plaintiff, but instead chose to retain a nonprotected employee.        See

Juarez v. ACS Gov’t Solutions Group, Inc.      , 314 F.3d 1243, 1245-46 (10th Cir.

2003).

         The magistrate judge carefully considered the evidence and the parties’

arguments, treating plaintiff’s pro se claims as liberally as possible,

notwithstanding plaintiff’s conclusory allegations and failure to identify a

position he could have been assigned to and that he was qualified for.         See Vol.

II, doc. 164 at 9-10. The magistrate judge found that plaintiff had failed to

establish a prima facie case of discrimination, but that even if plaintiff had done

so, he had not presented sufficient evidence of pretext.     Id. at 11.

         With respect to plaintiff’s FOIA and Privacy Act claims, defendant

conceded a timeliness violation under the FOIA, but noted that no damage remedy

was available.   See 5 U.S.C. § 552(a)(B). Nor were damages available for

Privacy Act violations alleging unlawful withholding of records.           See 5 U.S.C.

§ 552a(g)(3)(A). Defendant indicated that the agency’s final decision on

plaintiff’s FOIA and Privacy Act requests had ultimately been issued in May of

2002 and that plaintiff had contested certain exemptions raised as part of the final


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decision by appealing to the Department of the Army. The magistrate judge

determined that plaintiff’s arguments regarding any exemptions were not part of

the district court action and that defendant’s disclosure had essentially mooted the

FOIA/Privacy Act claims. Vol. II, doc. 164 at 13-14. Finally, the magistrate

judge recommended overruling plaintiff’s objections to the denial of an earlier

motion for sanctions.

       Plaintiff timely objected to the magistrate judge’s recommendation, stating,

inter alia, that plaintiff could not “present facts essential to justify his opposition”

to the motion for summary judgment. Vol. II, doc. 165 at 2. Specifically, he

complained that defendant was refusing to furnish “the complete RIF Retention

Register and associated documents as requested under discovery” and certain

federal regulations.   Id. at 3. In addition, he claimed his retirement was

involuntary because it was based on an “affirmative misrepresentation” and

“erroneous information.”    Id. at 4. He also listed a series of court orders he

claimed reflected “bias towards the [d]efendant.”     Id. at 5.

       The district court reviewed the magistrate judge’s recommendation

de novo, after thoroughly reviewing the file. The district court noted that “the

Retention Register was withheld by [d]efendant as a privileged document,”

containing a nearly 500-page listing of all civilian employees at Fitzsimons,




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including “several categories of personal information about each individual.”

Vol. II, doc. 167 at 3. The court further noted that:

             The privilege log stated that this was one of a category of
      documents which would not be produced to Plaintiff without the
      entry of a Confidentiality Order. Rather than approve the proposed
      confidentiality order submitted to him by Defendant, Plaintiff chose
      to compel the production of those documents on the stated basis that
      Defendant’s concern that production would violate the Privacy Act,
      5 U.S.C. § 552a, was unfounded.

             This motion to compel was stricken by Magistrate Judge
      Schlatter as lacking sufficient information to allow the Magistrate
      Judge to understand the basis of Plaintiff’s argument. The order
      directed Plaintiff to refile the motion with specific citations to the
      authority upon which he relied. It does not appear that Plaintiff ever
      refiled the motion. Consequently, it appears that Plaintiff never
      actually contested Defendant’s use of the privilege log. Similarly,
      Plaintiff never appealed to this court in any manner the
      nonproduction of the Retention Register or any other document.

             Under those circumstances, an extension of the time pursuant
      to Rule 56(f) to file his response to Defendant’s motion for summary
      judgment would not have made any difference. Time would not have
      solved the problem that Plaintiff was not going to get the document
      he wanted unless he either signed a confidentiality order or appealed
      to this Court regarding production of the document.

             In addition, all this is beside the fact that Plaintiff never asked
      for a Rule 56(f) extension of time. In the document referred to above
      in which he discusses Rule 56(f), he ends the document by asking
      that the motion for summary judgment be denied. He does not make
      any other requests in that amended response, which merely notes the
      unavailability of the Retention Register. Consequently, having failed
      to take advantage of these options which were open to him, Plaintiff
      had a fair opportunity to oppose Defendant’s motion for summary
      judgment.

Id. Vol. II, doc. 167 at 3-4 (footnotes omitted).

                                          -6-
       The court also determined that plaintiff had failed to present evidence

showing defendant’s proffered reasons for its employment action were pretextual,

concluding that no rational trier of fact could find for plaintiff based on the

showing made in defendant’s motion for summary judgment and plaintiff’s

response. Id. at 5-6. The court accepted the magistrate judge’s proposed findings

and recommendations and entered summary judgment for defendant.


                                      Appellate Issues

       In his opening brief plaintiff contends that (1) the district court erred in

granting summary judgment without allowing him sufficient documents essential

to his opposition; (2) the district court erred in its rulings on evidence and

discovery properly requested under the federal rules of procedure and the FOIA;

(3) the district court erred in refusing his request to maintain a class action; and

(4) other related issues set forth as part of an earlier appeal to this court. Aplt.

Opening Br. at 1.

       Plaintiff’s argument section rephrases these issues somewhat to allege the

district court erred by denying him certain discovery information, including his

FOIA request, by refusing his request to maintain a class action, and because of

the alleged bias and prejudice of the district court judge.   Id. at 3-4. In his reply

brief, plaintiff asks this court to review “all of the [d]istrict court records”

without further suggesting the purpose of that review. Aplt. Reply Br. at 2.

                                             -7-
He also argues that the retention register is not privileged material and that his

“request to review the complete retention register and related records” does not

violate the Privacy Act.   Id. at 3.


                                   Standard of Review

       We review the district court’s summary judgment decision de novo,

applying the same standard as the district court.   Simms v. Okla. ex rel. Dep’t of

Mental Health & Substance Abuse Servs.       , 165 F.3d 1321, 1326 (10th Cir. 1999).

Summary judgment is appropriate if “there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

              We examine the record to determine whether any genuine issue
       of material fact was in dispute; if not, we determine whether the
       substantive law was applied correctly, and in so doing we examine
       the factual record and reasonable inferences therefrom in the light
       most favorable to the party opposing the motion. However, where
       the non moving party will bear the burden of proof at trial on a
       dispositive issue[,] that party must go beyond the pleadings and
       designate specific facts so as to make a showing sufficient to
       establish the existence of an element essential to that party’s case in
       order to survive summary judgment.

Neal v. Roche , 349 F.3d 1246, 1249 (10th Cir. 2003) (quotation omitted).




                                             -8-
                   Summary Judgment/Retention Register Claims

      The crux of plaintiff’s argument appears to be that he was unable to

adequately respond to defendant’s motion for summary judgment without access

to the complete retention register. Plaintiff pursued his administrative remedies

under the FOIA and received his final response in May of 2002. As of October

2002, plaintiff had appealed the Army’s withholding of certain requested

documents under the Privacy Act exemption, 5 U.S.C. § 552(b)(6). We are not

aware of the outcome of the appeal process. Plaintiff did not seek to amend his

complaint to challenge the nondisclosure of this information, but merely

continues to claim he is entitled to it and that defendant’s listing of this material

as privileged is wrong.

      In response to a series of interrogatories, defendant submitted a privilege

log containing several categories of documents, including the complete retention

record, the disclosure of which, “absent the entry of a Confidentiality Order,”

defendant deemed would violate the Privacy Act.      Vol. II , doc. 117, Ex. A. In

April of 2002, defendant also sent plaintiff a draft proposed confidentiality order,

which defendant stated would be submitted to the court if plaintiff would sign it.

Vol. II, doc. 110 (attachments).

      At the May 9, 2002 motions hearing, plaintiff was asked if he would sign

the confidentiality agreement, with the understanding that he would not be


                                          -9-
allowed access to the documents unless he did so. Vol. IV at 20-21. The court

entered an order to this effect on May 13. Vol. II, doc. 109 at 2 (“Plaintiff is

further advised that if he fails to sign the confidentiality agreement, he will not be

allowed to read any documents which have been deemed confidential.”). In

response to the May 13 order, plaintiff complained that the defendant’s proposed

agreement was entitled “Stipulated Protective Order,” not a confidentiality

agreement. Vol. II, doc. 110 at 1. For that reason, plaintiff argued that any

constraints “placed upon him should not be imposed.”      Id. , doc. 110 at 2. He did

not, however, appeal the May 13 order to the district court.

      Plaintiff then moved to compel production of the documents listed in

defendant’s privilege log, arguing that defendant’s beliefs that disclosure of these

document would violate the Privacy Act were “unfounded.”        Id. Vol. II, doc. 117.

The magistrate judge entered an order striking that motion with instructions that

plaintiff could refile it with proper citations to regulations supporting his

arguments. Id. , doc. 120 at 1-2. Plaintiff did not refile the motion, nor did

he appeal to the district court the magistrate judge’s order striking his motion

to compel.

      On appeal, plaintiff does not contest the district court’s explanation that the

retention register was listed on defendant’s privilege log and that plaintiff’s

access was conditioned on signing a confidentiality order. Nor does he properly


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challenge defendant’s assertion of privilege, except to continue to seek to compel

production of the entire document. He did not seek review of the magistrate

judge’s order specifically advising him that if he did not sign defendant’s

confidentiality order he would not be able to read the documents. Finally, he has

offered no explanation, either in the district court or in this court, for his refusal

to sign the confidentiality order. Thus, any lack of discovery documents

sufficient to respond to defendant’s summary judgment motion was purely of

plaintiff’s own making. We concur with the district court’s observations, which,

again, plaintiff does not challenge on appeal, that having failed to appeal to the

district court the nonproduction of the retention register and having failed to

move for an extension of time under Fed. R. Civ. P. 56(f), plaintiff had a fair

opportunity to oppose defendant’s motion for summary judgment but failed to

take advantage of those options open to him. Vol. II, doc. 167 at 4. Plaintiff

therefore failed to come forward with specific facts showing a genuine issue for

trial as to those dispositive matters for which he bore the burden of proof.       See

Simms , 165 F.3d at 1326. Unsupported conclusory allegations, such as plaintiff’s

argument that once defendant produces the entire RIF retention register, plaintiff

will present evidence to establish his discrimination claim, do not create an issue

of fact. See Matthiesen v. Banc One Mortgage Corp.         , 173 F.3d 1242, 1247

(10th Cir. 1999). The district court correctly determined that defendant’s


                                            -11-
summary judgment motion was properly supported and fulfilled the requirements

of demonstrating that no genuine issue of material fact existed and that defendant

was entitled to summary judgment as a matter of law.            See Murray v. City of

Tahlequah , 312 F.3d 1196, 1200 (10th Cir. 2002). Finally, plaintiff has failed to

advance any grounds on appeal, accompanied by reasoned argument, questioning

the merits of the court’s ruling on his discrimination claim.        See Gross v.

Burggraf Constr. Co. , 53 F.3d 1531, 1547 (10th Cir. 1995). We will not assume

the role of advocate for a pro se litigant.    See Hall v. Bellmon , 935 F.2d 1106,

1110 (10th Cir. 1991).


                                     Class Action Claim

       Plaintiff next argues that the district court erred in dismissing his class

action claim. The court did so (1) because plaintiff failed to exhaust his

administrative remedies by not including this claim in his administrative EEO

complaint and (2) because plaintiff’s complaint lacked either specific allegations

to support his claim that defendant’s alleged violations affected the rights of

numerous other employees or the prerequisites for a class action claim under

Fed. R. Civ. P. 23. On appeal plaintiff presents no argument beyond that he is

“entitled to pre-certification discovery to establish [a] record that [the] district

court needs to determine whether [the] requirements for [a] class suit have been

met” under Fed. R. Civ. P. 23(a). Aplt. Opening Br. at 3.

                                              -12-
       In his objections to the magistrate judge’s recommendations, plaintiff

argued that his attempt to raise the class action question before the administrative

law judge for the MSPB was denied. Vol. I, doc. 43 at 2-3. But plaintiff did not

provide any specific facts to support the procedural requirements of Rule 23(a),

nor did he make any claim of needing “pre-certification discovery.” “Issues not

raised in plaintiff’s objections to the magistrate judge’s recommendation are

waived on appeal.”    Fymbo v. State Farm Fire & Cas. Co.       , 213 F.3d 1320, 1321

(10th Cir. 2000). More fundamentally, however, “[a] litigant may bring his own

claims to federal court without counsel, but not the claims of others.”     Id. The

district court properly dismissed this claim.


                          Claim of Unconstitutionality (Bias)

       Plaintiff filed a pleading entitled “Claim of Unconstitutionality,” purporting

to rely on Colorado Local Rule 24.1(A), which governs a party’s responsibilities

when that party “questions the constitutionality of an act of Congress.” Plaintiff,

however, only took issue with certain rulings (or alleged lack thereof) of the

magistrate judge and district judge and contended that the magistrate judge

abused his judicial power pursuant to 28 U.S.C. § 453. We are not directed to any

act of Congress plaintiff claims is unconstitutional. Plaintiff did not specifically

seek the recusal of the magistrate judge or the district judge pursuant to the

provisions of either 28 U.S.C. § 144 or § 455, nor did he comply with the

                                            -13-
procedural requisites of those statutes.      See generally Hinman v. Rogers   , 831 F.2d

937 (10th Cir. 1987). He also did not attempt to comply with the procedure for

filing complaints against judges.       See 28 U.S.C. §§ 351-364. In any event,

adverse rulings alone are insufficient grounds for disqualification of a judge, “as

is evidence that the judge criticized or was angry with a party.”      Lopez v. Behles

(In re Am. Ready Mix, Inc.) , 14 F.3d 1497, 1501 (10th Cir. 1994). To the

contrary, the record reflects that both the magistrate judge and district judge

demonstrated remarkable patience with plaintiff because of his pro se status.

We find this claim to be unsupported and without merit.


                           Review of Other Court Documents

       In his reply brief, plaintiff asks this court to generally review all of the

district court records. We decline to do so, as this court is neither obligated to

sift through the record to find support for plaintiff’s arguments,     SEC v. Thomas ,

965 F.2d 825, 827 (10th Cir. 1992), nor to construct his arguments for him.        Perry

v. Woodward , 199 F.3d 1126, 1141 n.13 (10th Cir. 1999).

       Plaintiff’s pro se status does not excuse the obligation of a litigant to

comply with the fundamental requirements of the appellate rules,        Ogden v.

San Juan County , 32 F.3d 452, 455 (10th Cir. 1994), nor is it our “burden to

hunt . . . down pertinent materials.”      Rios v. Bigler , 67 F.3d 1543, 1553 (10th Cir.

1995). Also, insofar as plaintiff purports to incorporate unspecified “other related

                                              -14-
issues” as set forth in briefs filed in an earlier appeal, No. 03-1117, which was

dismissed for lack of jurisdiction, because he presents no argument in support

of those issues, we decline to review his earlier briefs in search of them.      Id.

at 1553.


                                        Conclusion

       The district court properly granted defendant’s motion for summary

judgment. We have considered the balance of plaintiff’s arguments and conclude

they are without merit. We have reviewed plaintiff’s submission entitled “Matters

Pertaining to Appellant’s Opening Brief,” which we construe as a motion to

accept his opening brief filed November 3, 2003, as timely filed in this case.

Construed as such, the motion is GRANTED.

       AFFIRMED. The mandate shall issue forthwith.


                                                         Entered for the Court



                                                         Robert H. Henry
                                                         Circuit Judge




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