           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 2, 2009
                                     No. 08-60716
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

MARK MONTGOMERY,

                                           Petitioner,

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF
LABOR,

                                           Respondent.




                       Petition For Review of an Order of the
                        United States Department of Labor
                                ARB Case No. 05-129


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Mark Montgomery seeks review of a decision of the Department of Labor
Administrative Review Board (ARB) affirming a ruling of an Administrative Law
Judge (ALJ) that Montgomery’s dismissal by Jack in the Box was not retaliatory.
We deny the petition.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 08-60716

                                        I
      Montgomery was employed as a tractor-trailer driver for Jack in the Box,
a corporation that distributes food and related supplies to company-owned and
franchised fast-food restaurants.      Montgomery worked at the company’s
distribution center in Dallas, Texas, until his dismissal in 2003.
      During the course of his employment, Montgomery made a series of
complaints to Jack in the Box, including reporting broken equipment, alleging
safety violations, and alleging that Jack in the Box overworked its drivers. In
2003, Jack in the Box received a number of complaints about Montgomery’s
behavior from store managers, including complaints that he had blocked other
deliveries and refused to place pallets inside the store. Jack in the Box warned
Montgomery that he had “one last chance to straighten things out” with regard
to his violations of company policy.
      In October of 2003, Montgomery attempted to drive his 18-wheel tractor-
trailer into a service station to take a rest break. In doing so, Montgomery drove
the rear tires of his 18-wheeler over a median, causing the vehicle’s drive wheels
to lose contact with the ground. Montgomery called a private wrecking service,
rather than the company’s towing service, to pull the truck off the median.
Montgomery did not report the incident to Jack in the Box, despite a company
policy requiring employees to report all vehicle accidents by the end of the day.
When Jack in the Box learned of the incident, it terminated his employment for
“failure to report an accident.”
      Montgomery filed a complaint with the Department of Labor, alleging that
Jack in the Box retaliated against him in violation of the Surface Transportation




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Assistance Act (STAA).2              After holding an evidentiary hearing, the ALJ
recommended dismissal of Montgomery’s complaint. The ARB reviewed the
ALJ’s recommendation and issued a final decision denying all of Montgomery’s
claims. The ARB denied Montgomery’s motion for reconsideration, and this
petition for review followed.
                                                II
      We review an agency’s rulings under the standard of review established
in the Administrative Procedure Act.3 Under that standard, we will affirm an
ARB’s decision and order “unless it is arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law, or unless it is not supported by
substantial evidence.”4
                                               III
      In his petition for review, Montgomery raises a number of procedural
objections to the ARB’s handling of his case. First, Montgomery argues that the
ALJ incorrectly granted Jack in the Box’s motion in limine. In that motion, Jack
in the Box argued that Montgomery should be denied recovery for any adverse
actions that took place more than 180 days prior to the filing of his STAA
complaint. Because the STAA requires a complainant to file a whistleblower
claim “not later than 180 days after the alleged violation occurred,”5 the ALJ did
not err when it granted Jack in the Box’s motion.                      Montgomery further
complains that he did not have fair notice of the motion and that, in the

      2
          49 U.S.C. §§ 31101-31107.
      3
          Macktal v. Chao, 286 F.3d 822, 825 (5th Cir. 2002).
      4
          5 U.S.C. § 706(2)(A); Macktal v. U.S. Dep’t of Labor, 171 F.3d 323, 326 (5th Cir. 1999).
      5
          49 U.S.C. § 31105(b)(1).

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alternative, Jack in the Box waived any reliance on the 180-day claim-filing
window because the company did not assert it as an affirmative defense.
Because Montgomery did not raise these objections at the time of trial, however,
they are waived.6
      Second, Montgomery argues that the ALJ and the ARB erred when they
failed to deem as admitted various allegations that he made in post-trial
submissions, given that Jack in the Box did not specifically deny those
allegations. Federal Rule of Civil Procedure 8(b)(6) provides that an allegation
is admitted “if a responsive pleading is required and the allegation is not
denied.”     In this case, however, no allegations should have been admitted
because no responsive pleading was required after Montgomery’s post-trial
motions for a new trial. Therefore, the ALJ and the ARB properly refused to
deem Montgomery’s allegations as admitted.
      Third, Montgomery contends that the ARB abused its discretion when it
denied his motion for reconsideration. The ARB characterized Montgomery’s
motion as “rehash[ing] arguments the Board has already considered and
rejected.” Montgomery provides no reason to suspect that the ARB committed
reversible error in this instance.
      Fourth, Montgomery argues that the ARB violated his due process right
to a full and fair trial on the merits. Montgomery offers no argument in support
of this contention, beyond a statement that adjudicative tribunals must give
litigants a fair trial. Although we will liberally construe the briefs of pro se
litigants, arguments must be briefed to be preserved.7 Montgomery’s failure to


      6
          See Batiste v. Burke, 746 F.2d 257, 258 n.1 (5th Cir. 1984).
      7
          Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

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develop this argument therefore constitutes an abandonment of the claim.
      Fifth, Montgomery asserts that his constitutional right to effective
assistance of counsel was infringed during the proceedings before the ARB and
the ALJ. This claim fails because the Sixth Amendment right to counsel is
inapplicable in civil cases.8
      Finally, we need not address whether the ARB’s decision was supported
by substantial evidence. Montgomery does not brief this issue, and thus he has
abandoned the argument.9
                                        *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the ARB.




      8
          See FTC v. Assail, Inc., 410 F.3d 256, 267 (5th Cir. 2005).
      9
          See Yohey, 985 F.2d at 225.

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