                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        January 13, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    JACK J. LOMBARDO,

                Plaintiff-Appellant,

    v.                                              Nos. 05-3080 & 05-3221
                                                  (D.C. No. 02-CV-2180-CM)
    JOHN E. POTTER, Postmaster                             (D. Kan.)
    General, United States Postal
    Service,

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Jack J. Lombardo appeals the district court’s grant of summary judgment to

his former employer, the United States Postal Service (USPS), in this action under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17.

Mr. Lombardo complained that he was subjected to unlawful retaliation, in a

variety of ways over a number of years, for exercising his rights under USPS’s

equal employment opportunity (EEO) system, and that ultimately he was forced to

retire. In the decision underlying Appeal No. 05-3080, the district court granted

summary judgment to USPS, finding that Mr. Lombardo had not exhausted his

administrative remedies with regard to some of his claims and that he did not

show that the other acts that he complained of constituted retaliation. In the

decision underlying Appeal No. 05-3221, the court denied Mr. Lombardo’s

motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm both decisions.

                                          I.

      Since he filed his opening appellate briefs, Mr. Lombardo has made two

additional filings seeking to add new issues on appeal. Issues not raised in an

appellant’s opening brief are waived. See United States v. Kimler, 335 F.3d 1132,

1138, n. 6 (10th Cir. 2003) (“We will not address issues not raised in the

appellant’s opening brief, especially where the arguments are based on authority

that was readily available at the time of briefing.”). Thus, we grant appellee’s


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motion to strike Mr. Lombardo’s supplemental pleadings filed on October 31,

2005 and November 2, 2005.

                                         II.

      We review the district court’s grant of summary judgment de novo, viewing

the record in the light most favorable to Mr. Lombardo, as the party opposing

summary judgment. See Lanman v. Johnson County, 393 F.3d 1151, 1154-55

(10th Cir. 2004). Summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that 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 review the denial of Mr. Lombardo’s motion for

reconsideration for abuse of discretion. See Price v. Philpot, 420 F.3d 1158,

1167-68 n.9 (10th Cir. 2005).

      Mr. Lombardo raises essentially the same arguments in both appeals. Most

of his arguments (including his complaints about lack of discovery, and

specifically the lack of depositions of USPS employees, the failure to submit his

deposition changes to the court, the failure to submit documentary evidence, and

the failure to amend the complaint to assert a constructive discharge claim)

involve his dissatisfaction with his court-appointed counsel’s performance before

the district court. Essentially, Mr. Lombardo wants another chance to seek


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additional evidence and better support his claims. But it is now too late. In our

legal system, parties generally are bound by the acts or omissions of their counsel.

See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962); Security Nat’l Bank v.

John Deere Co., 927 F.2d 519, 520 (10th Cir. 1991). Mr. Lombardo’s discontent

with his counsel’s performance does not establish grounds for reversing the

district court’s decisions. Generally there is no constitutional right to counsel in a

civil action, and consequently “[c]ounsel’s performance, however deficient,

would not . . . form the basis for reversal of the trial court.” See Beaudry v. Corr.

Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003) (per curiam). Mr. Lombardo

argues that he did not choose his counsel and he was forced to accept the counsel

that the court appointed for him, but he could have chosen not to accept appointed

counsel and to continue to proceed pro se. See 28 U.S.C. § 1654 (providing that

“parties may plead and conduct their own cases personally or by counsel”).

      The district court comprehensively reviewed Mr. Lombardo’s claims and

arguments in its orders dated January 19, 2005 and May 13, 2005, and we affirm

the district court’s decisions for substantially the same reasons that the district

court stated in those orders.




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III.




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     Appellee’s motion to strike Mr. Lombardo’s supplemental pleadings is

GRANTED. Mr. Lombardo’s additional information documents filed on

October 31, 2005 in Appeal No. 05-3221 and on November 2, 2005 in Appeal




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Nos. 05-3080 and 05-3221 are stricken from the appellate records. The

judgments of the district court are AFFIRMED.

                                                 Entered for the Court


                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




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