Appellate Waiver for Pro Se Deficient Briefing: Failure to Cite the Record or Attack Dispositive Grounds Requires Affirmance

Introduction

Cook v. Albany County Board of County Commissioners (10th Cir. Sept. 4, 2026) arises from employment-related claims brought by Kailyn Cook and Susan Shipp against Albany County, Wyoming and unidentified “John Doe” officials. Plaintiffs alleged discrimination and retaliation under Title VII and retaliation under the First Amendment via 42 U.S.C. § 1983. The district court granted summary judgment to the County on multiple independent grounds (timeliness, merits, and lack of protected speech, among others). On appeal—filed pro se—the key issue became not the underlying employment facts, but whether Plaintiffs’ appellate presentation satisfied the basic requirements for appellate review.

The Tenth Circuit’s order and judgment (expressly nonprecedential) affirms on a recurring procedural principle: inadequate briefing—especially failure to provide record citations, legal authority, and targeted challenges to dispositive rulings—results in waiver of appellate review, even for pro se litigants.

Summary of the Opinion

The Tenth Circuit affirmed the district court’s summary judgment because Plaintiffs’ opening brief did not comply with Federal Rule of Appellate Procedure 28(a)(8)(A). The court held that:

  • Plaintiffs’ arguments were conclusory, lacked record citations, and cited little helpful authority.
  • The court would not “fill the void” by developing arguments or doing legal research for them.
  • Plaintiffs also failed to meaningfully challenge the district court’s dispositive conclusions, providing an independent basis for waiver.

As a result, the panel affirmed without reaching the merits of the district court’s multiple grounds for summary judgment.

Analysis

Precedents Cited

1) Garrett v. Selby Connor Maddux & Janer

The court’s central authority is Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005), quoted for two linked propositions:

  • Pro se litigants must follow the same procedural rules as other litigants.
  • If they fail to comply with Rule 28’s briefing requirements, the court will not craft arguments or perform the necessary legal research.

In Cook, Garrett supplies the doctrinal bridge between liberal construction of pro se filings and strict enforcement of appellate briefing rules: liberal construction does not excuse the obligation to present a reviewable appellate argument.

2) United States v. Walker

The panel cited United States v. Walker, 918 F.3d 1134 (10th Cir. 2019) for the proposition that arguments raised only “in a perfunctory manner” may be deemed waived. This supports the conclusion that generalized assertions of error—without developed reasoning and support—do not preserve issues for review.

3) Pignanelli v. Pueblo Sch. Dist. No. 60

The court relied on Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213 (10th Cir. 2008) to illustrate that failure to cite pertinent legal authority or record evidence can waive review. In other words, an appellate court does not function as a fact-finder or advocate; it reviews identified errors supported by citations and law.

4) Nixon v. City & Cnty. of Denver

The panel emphasized, via Nixon v. City & Cnty. of Denver, 784 F.3d 1364 (10th Cir. 2015), that the appellant’s first task is to explain why the district court was wrong. This case underpins the court’s additional waiver holding: even if a brief contains narrative and complaints, it must engage the district court’s reasoning.

5) Reedy v. Werholtz

Finally, Reedy v. Werholtz, 660 F.3d 1270 (10th Cir. 2011) is used to justify declining review when the opening brief does not challenge the district court’s reasoning on the point at issue. This is particularly important in cases (like this one) where the district court gave multiple independent grounds for judgment.

Legal Reasoning

1) Rule 28(a)(8)(A) as the gatekeeper

The opinion treats Fed. R. App. P. 28(a)(8)(A) as a threshold requirement. That rule demands an opening brief contain: (i) the appellant’s contentions; (ii) reasons for them; and (iii) citations to both authorities and parts of the record. The panel found Plaintiffs’ brief fell far short: it provided a “lengthy factual narrative” and broad claims of error, but no record citations and no developed legal argument showing reversible error.

2) Liberal construction does not mean advocacy by the court

The panel acknowledged the standard practice of liberally construing pro se filings, but invoked Garrett to draw a firm boundary: appellate courts do not supply missing elements—argument structure, record pinpoint citations, or controlling legal standards. This preserves judicial neutrality and protects the adversarial system.

3) Waiver by (a) deficient development and (b) failure to attack dispositive grounds

The court articulated two distinct waiver routes:

  • Perfunctory / conclusory briefing (supported by Walker and Pignanelli): even if an issue is mentioned, it is waived if not meaningfully developed with law and record support.
  • Failure to address the district court’s dispositive conclusions (supported by Nixon and Reedy): when the appellant does not confront the reasoning actually used to decide the case, there is nothing for the court to review.

The opinion illustrates this with the hostile-work-environment claim: even if Plaintiffs arguably contested the district court’s alternative merits holding, that did not matter because they did not successfully challenge the primary basis—timeliness. This reflects a broader appellate principle: to obtain reversal, an appellant must defeat every independent ground supporting the judgment.

4) Relationship to the underlying merits (not reached on appeal)

While the panel did not revisit merits, its description of the district court’s rulings shows why “failure to challenge dispositive grounds” mattered:

  • Hostile work environment (Title VII): held time-barred for failure to file a timely administrative charge; alternatively failed on the merits.
  • Other Title VII theories: Shipp failed to establish constructive discharge; Cook failed to show causation for retaliatory discharge; and Cook’s pretext theory failed based on concessions about protected-class harassment.
  • First Amendment retaliation (§ 1983): Plaintiffs admitted their complaints were made “pursuant to their official duties,” so their speech was not constitutionally protected (consistent with the general Garcetti-type framework, though not cited by name here).

The appellate holding operates as a procedural “off-ramp”: regardless of whether any merits arguments could have been made, they were not presented in a reviewable way.

Impact

1) Practical rule for future litigants (especially pro se)

Even as a nonprecedential order and judgment, Cook reinforces a well-established and frequently applied operational rule in the Tenth Circuit: an appellate brief must be an error-focused legal argument, not a factual narrative and generalized accusation. For pro se appellants, the case underscores that liberal construction does not relax Rule 28’s core demands.

2) Importance of challenging independent grounds

The decision also highlights a common appellate pitfall: where the district court offers multiple independent reasons for summary judgment, appellants must attack each dispositive ground. Challenging only an alternative holding (e.g., merits) while ignoring a threshold bar (e.g., timeliness) will not change the outcome.

3) System-level effects

The approach promotes judicial efficiency and fairness by:

  • preventing appellate courts from becoming de facto counsel for one side,
  • ensuring appellees have notice of the specific errors alleged, and
  • limiting merits review to disputes framed by law and record citations.

Complex Concepts Simplified

  • Summary judgment: a pretrial ruling where the court decides a case because there is no genuine dispute of material fact requiring a trial.
  • Administrative charge (Title VII): before suing under Title VII, a plaintiff generally must file a charge with the EEOC (or state agency) within prescribed deadlines. Missing that deadline can bar the claim as “time-barred.”
  • Prima facie case: the minimal set of elements a plaintiff must show to get past an initial evidentiary threshold (e.g., for retaliation, often including protected activity, adverse action, and causation).
  • Constructive discharge: a legal theory treating a resignation as a firing when working conditions are so intolerable that a reasonable person would feel compelled to resign.
  • Pretext: in employment discrimination law, evidence that the employer’s stated reason is not the real reason, but a cover for unlawful motive.
  • Public-employee speech “pursuant to official duties”: when a government employee speaks as part of their job duties, that speech is generally not protected by the First Amendment against employer discipline.
  • Waiver on appeal: losing the ability to obtain appellate review because the issue was not properly presented—commonly by failing to develop argument, cite authority, cite the record, or challenge the actual basis of the ruling.

Conclusion

Cook v. Albany County Board of County Commissioners affirms a procedural but consequential appellate principle: even pro se appellants must comply with Rule 28 by presenting developed legal arguments supported by record citations and relevant authority, and they must directly challenge each dispositive ground supporting the judgment. The case’s significance lies less in employment-discrimination doctrine and more in appellate practice: without a properly constructed opening brief, potentially substantive claims can be lost at the courthouse door.