The Judicial Sieve: A Critical Analysis of Adequate Briefing Standards in the Federal Circuit Courts of Appeals

A litigant who loses at trial in federal court is statutorily guaranteed one appeal as of right. Yet courts routinely filter issues from briefs that they deem unworthy of addressing. Consider Gregory Willis, who filed an action against his former employer--a corporation worth over $4 billion--asserting multiple employment discrimination claims. On appeal, even though an affidavit in the record quoted Willis’s supervisor as saying “we are going to terminate that nigger Greg Willis for reporting me and trying to burn my ass,” the United States Court of Appeals for the Fifth Circuit declined to address the merits of his wrongful termination claim because it was, as the court described it, “inadequately briefed.” Courts are no more forgiving when life or liberty is on the line. For example, when Carlos Sevilla-Oyola appealed his thirty-year sentence for a drug trafficking offense, the United States Court of Appeals for the First Circuit refused to consider one of his arguments--namely, that he would not have pled guilty had he been informed that the maximum sentence was life in prison-- because he had asserted it “in the most skeletal way, leaving the court to do counsel’s work.” The dissenting judge was left perplexed as to “what ‘work’ ha[d] been left undone,” considering that Sevilla had “identified a factual error, highlighted governing precedent, and applied that law to the facts at hand.” Most strikingly, many courts hold unrepresented litigants to virtually the same briefing standards as their represented counterparts. For example, Gwen Alexander filed an action pro se against her former employer, Monsanto--the largest seed company in the world--alleging she had been terminated in retaliation for protected activity under a state whistleblower statute. She lost at trial, and on appeal, the Fifth Circuit imposed waiver on her claim that Monsanto misstated certain facts during closing arguments because she had “fail[ed] to include citations to the record.” These cases are hardly outliers. As federal dockets have filled to the brim, circuit courts have sought new ways to filter issues from the briefs they read, often resulting in harsh consequences. The policy of declining to consider issues not raised at the trial court or not included in the briefs on appeal is as old as appellate practice itself. But declining to consider issues that were raised below and were raised in the initial brief--albeit perhaps without citations to the record or to case law or with a conclusory argument-- is a relatively new one. This Comment is the first in-depth inquiry into what I call “adequate briefing standards” in the federal circuit courts. These are judicially-created prudential rules that strictly interpret Rule 28 of the Federal Rules of Appellate Procedure to require that appellants brief an issue “with sufficient precision” on appeal in order to avoid forfeiting, or “waiving,” the issue. These briefing standards may confound practitioners, as what constitutes “adequate” or “sufficient” briefing varies from circuit to circuit, and even from panel to panel. Courts cite the adversarial nature of our legal system as a justification, but these procedural snares are often employed with nearly equal force against pro se litigants and criminal defendants, for whom the playing field is anything but even. In Part II of this Comment, I briefly explore the doctrine of issue forfeiture--also known as appellate waiver--and its discretionary nature. I then summarize the effort to create uniform pleading standards in the federal courts, culminating with the Rules Enabling Act and the subsequent promulgation of the Federal Rules of Appellate Procedure. Lastly, I survey the landscape of a federal judiciary whose docket size has grown exponentially and discuss several methods courts have used to manage the problem. In Part III, I explain how courts broadly interpreted Rule 28 to create adequate briefing standards and offer examples that highlight their capricious nature and inconsistent application. Part IV questions the purported policy behind the standards-- adversarialism--and makes the case that they were more likely born out of a desire for judicial efficiency in response to the caseload crisis. I expound upon this argument in Part V by presenting examples of courts imposing adequate briefing standards against criminal defendants and pro se litigants, as well as explaining the difficulties these litigants face in complying with them. Part VI examines the statutory authority (via Rule 47 of the Federal Rules of Appellate Procedure) and the constitutional authority (via inherent powers) of courts to enforce adequate briefing standards. Finally, I propose solutions in Part VII to decrease the variability among circuits and bridge the gap between judicial efficiency and the right to a fair hearing.