4. Analysis
A. Precedents Cited and Their Significance
Self-representation does not eliminate procedural obligations
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), supplied the governing approach to Wakat’s pro se filings. Courts construe such submissions liberally, but they do not act as the litigant’s lawyer by constructing arguments or searching the record for possible claims. Pro se parties remain subject to the procedural rules governing other litigants.
This precedent explains why the panel did not develop challenges to the dismissals on Wakat’s behalf. Liberal construction could clarify an argument he attempted to make; it could not replace an entirely omitted argument.
The appellant must confront the actual grounds for dismissal
Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366, 1369 (10th Cir. 2015), provided the opinion’s central framing: an appellant’s first task is to explain why the challenged decision was wrong. The panel also used that decision’s description of a brief containing “nary a word” challenging the basis for dismissal. Wakat’s discussion of later filing restrictions did not address the reasons his lawsuits had ended.
In re Syngenta AG MIR 162 Corn Litig., 61 F.4th 1126, 1181 (10th Cir. 2023), supplied the broader appellate-briefing waiver rule. An issue may be waived when it is not argued, or is argued inadequately, in the opening brief. Here, the failure was complete omission rather than merely insufficient development.
Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012), reinforced that arguments not clearly made in the opening brief are deemed waived. It confirmed that courts need not infer an unexpressed challenge from a litigant’s general dissatisfaction with the proceedings.
Kitchen v. Herbert, 755 F.3d 1193, 1208 (10th Cir. 2014), similarly states that omission of an issue from the opening brief generally forfeits appellate consideration. Together, these authorities supported affirmance without substantive examination of the district courts’ dismissal analyses.
Judicial notice permits recognition of another proceeding, not review of it
Bruce v. City & Cnty. of Denver, 57 F.4th 738, 741 n.3 (10th Cir. 2023), allowed the panel to take judicial notice of publicly filed court records directly related to the issues before it. General Order 25-09 was outside the records of the four appealed cases, but its existence and contents were relevant to Wakat’s arguments.
Relying also on Federal Rule of Evidence 201(c)(1), the court noticed the order on its own initiative. This established what order Wakat was challenging; it did not make that order appealable within these proceedings.
Filing restrictions must be challenged through the proper appeal
Werner v. Utah, 32 F.3d 1446, 1448 (10th Cir. 1994) (per curiam), directly addressed the appropriate route for challenging filing restrictions: an appeal from the order imposing them. It supported the conclusion that Wakat could not substitute a challenge in unrelated appeals for an appeal of General Order 25-09 itself.
Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co., 119 F.3d 847, 849 (10th Cir. 1997), recognized an important qualification. A formally designated notice is not invariably indispensable if another timely filing provides the functional equivalent of the notice required by Rule 3.
The court considered that possibility but found no qualifying submission. Wakat’s original notice predated the restrictions, and no timely later filing supplied the missing indication that he sought appellate review of that order. The decision therefore rested on more than a technical defect in a document’s title.
The merger doctrine did not reach a later order in another case
McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002), describes the ordinary rule that an appeal from a final judgment brings earlier nonfinal rulings and rulings producing that judgment within appellate review. Federal Rule of Appellate Procedure 3(c)(4) likewise recognizes the reach of merger.
That rule did not assist Wakat. General Order 25-09 was entered after the judgments, in a distinct miscellaneous proceeding. It was not an earlier ruling that contributed to any dismissal.
Sines v. Wilner, 609 F.3d 1070, 1075 (10th Cir. 2010), supplied the complementary principle that an order entered in a separate case does not merge into the final judgment identified in a notice of appeal. Its relevance was particularly strong because the restrictions arose wholly outside the four underlying actions.
Later orders require an additional timely appellate filing
Art Janpol Volkswagen, Inc. v. Fiat Motors of N. Am., Inc., 767 F.2d 690, 697 (10th Cir. 1985), supported the final jurisdictional ground: review of a later-entered order requires a separate notice of appeal. Even assuming the restrictions could otherwise have been challenged in these appeals, Wakat had not filed an amended notice or its functional equivalent, and the applicable appeal period had expired.
The court connected this requirement to Federal Rule of Appellate Procedure 4(a)(1)(A), which supplies the ordinary 30-day deadline applicable here.
B. Legal Reasoning
Two independent procedural barriers
The opinion carefully separates the judgments properly before the court from the order Wakat actually discussed. The dismissals were within the court’s appellate jurisdiction, but Wakat supplied no preserved argument for reversing them. The filing restrictions were extensively challenged in his briefing, but the court lacked jurisdiction to review them in these appeals.
That distinction is fundamental: adequate argument cannot replace a proper appeal, and a proper appeal does not replace adequate argument.
Affirmance did not resolve the underlying legal merits
The panel affirmed because Wakat failed to engage with the dismissal grounds. It did not independently endorse the district court’s treatment of the civil-rights allegations or decide the sufficiency of the financial disclosures.
Likewise, the opinion’s use of briefing waiver should not be understood as announcing that subject matter jurisdiction itself can be created or waived by a litigant’s silence. Its stated holding concerns Wakat’s failure to present an appellate challenge to the dismissal entered on that ground.
Timing defeated both appellate coverage and the claimed connection
The restrictions postdated both the dismissals and the notice of appeal. That sequence prevented the original notice from reflecting an intent to challenge the not-yet-existing order and prevented merger into the earlier judgments.
The same chronology undermined Wakat’s assertion that the restrictions prevented him from pursuing these four cases. As the panel observed, the cases had already terminated when the restrictions were imposed. The court did not, however, use that observation to decide the constitutional validity of the restrictions.
Appellate fee relief did not undo district court noncompliance
Granting in forma pauperis status on appeal did not establish that Wakat’s earlier district court applications were complete or that the dismissals were erroneous. The appellate grants addressed fee status in the appeals; they did not retroactively cure the deficiencies that led to dismissal below.
C. Potential Impact
Although nonprecedential, the decision offers persuasive guidance in several recurring situations:
- Appeals involving several cases: Reusing an identical brief is ineffective when it fails to address the grounds supporting the judgments under review.
- Challenges to filing restrictions: Constitutional objections must be presented through a timely appeal encompassing the restrictions order, not simply inserted into an existing appeal.
- Postjudgment developments: Litigants must assess whether a later order requires a new or amended notice rather than assuming an earlier appeal automatically covers it.
- Pro se litigation: Courts may read filings generously without supplying missing arguments or disregarding appellate requirements.
- Use of outside court records: Judicial notice can establish the existence of a related order without expanding the reviewing court’s jurisdiction.
The opinion does not establish standards for determining when filing restrictions are constitutionally permissible. Its significance is procedural: it identifies the route required before such objections can receive appellate consideration.