Avant v. Doke: Appellate Waiver and Forfeiture Strictly Enforced—Inadequate Opening Briefing and Failure to Oppose a Dispositive Defense Require Affirmance

1. Introduction

In Avant v. Doke (10th Cir. May 5, 2026) (unpublished “Order and Judgment”), the Tenth Circuit affirmed summary judgment for a county commissioner sued under 42 U.S.C. § 1983 for alleged First Amendment retaliation following the termination of a county truck driver.

The litigation’s procedural history is central. After two prior interlocutory qualified-immunity appeals—Avant v. Doke (Avant I) and Avant v. Doke (Avant II)—the case returned to the district court. On remand from Avant II, the defendant sought Rule 60(b) reconsideration to obtain summary judgment on the remaining official-capacity aspect of a “free-speech” theory, arguing the Heffernan defense foreclosed liability. The district court agreed and entered final judgment for the defendant.

On appeal from that final judgment, the key issues became not the substantive contours of First Amendment retaliation, but whether the plaintiff properly preserved and presented arguments for appellate review: (i) whether the plaintiff adequately briefed error as to the earlier-disposed “political association” claim, and (ii) whether the plaintiff preserved a challenge to the district court’s reliance on the Heffernan defense by opposing it in the Rule 60(b) proceedings and, if not, whether he argued plain error on appeal.

2. Summary of the Opinion

The Tenth Circuit affirmed in full. It held:

  • The plaintiff’s challenge to summary judgment on the political-association claim was waived because his opening brief did not adequately identify the alleged district-court error, did not meaningfully address qualified immunity, and offered only cursory argument (with attempted development coming too late in a reply brief).
  • The plaintiff’s challenge to summary judgment on the free-speech claim (as resolved via reconsideration and the Heffernan defense) was forfeited in the district court because the plaintiff did not respond to the defendant’s Heffernan argument in the Rule 60(b) response; and it was waived on appeal because the plaintiff did not request plain-error review.

The court expressly stated it did not opine on the merits of the district court’s interpretation of Avant II or on the merits of the Heffernan defense, because waiver resolved the appeal.

3. Analysis

3.1. Precedents Cited

Although the disposition turns on preservation doctrine, the panel relies on a set of interlocking authorities governing (a) First Amendment retaliation frameworks, (b) qualified immunity posture, and (c) appellate waiver/forfeiture rules.

A. The case’s earlier appellate decisions

  • Avant v. Doke (Avant I), No. 21-7031, 2022 WL 2255699 (10th Cir. June 23, 2022) (unpublished): Vacated and remanded because the record/briefing were “underdeveloped” regarding Garcetti/Pickering in a “perceived, not actual, speech” setting, and because the defendant had not had a “proper opportunity” to raise the Heffernan defense in district court.
  • Avant v. Doke (Avant II), 104 F.4th 203 (10th Cir. 2024): Reversed denial of qualified immunity, holding the law was not “clearly established,” and directed summary judgment for the defendant in his individual capacity on the free-speech claim.

In the present appeal, these prior decisions matter mainly because they set up the Rule 60(b) reconsideration posture and the defendant’s effort to extend the post-Avant II resolution to the official-capacity claim via Heffernan. But the panel avoids deciding the substantive import of Avant II on the Heffernan issue due to waiver.

B. First Amendment retaliation and perceived-speech background (context, not merits)

  • Garcetti v. Ceballos, 547 U.S. 410 (2006)
  • Pickering v. Bd. of Educ., 391 U.S. 563 (1968)
  • Trant v. Oklahoma, 754 F.3d 1158 (10th Cir. 2014)
  • Rock v. Levinski, 791 F.3d 1215 (10th Cir. 2015)

The opinion recounts that the district court originally applied Garcetti/Pickering’s five-factor test (as summarized in Rock v. Levinski) to an unpled, court-identified “free-speech claim.” That history explains why the litigation generated interlocutory appeals and why “perceived” speech became salient. However, the present decision does not apply Garcetti/Pickering to resolve the appeal.

C. Heffernan and political-activity restriction defense

  • Heffernan v. City of Paterson, 578 U.S. 266 (2016)
  • Duda v. Elder, 7 F.4th 899 (10th Cir. 2021)

Duda v. Elder is quoted for the description of Heffernan as providing “a narrow affirmative defense” when political activities are restricted neutrally and constitutionally. The district court applied Heffernan on reconsideration, but the Tenth Circuit declines to examine whether that application was correct because the plaintiff failed to preserve his opposition and failed to argue plain error on appeal.

D. Qualified immunity posture and capacity distinctions

  • Hulen v. Yates, 322 F.3d 1229 (10th Cir. 2003)

Hulen v. Yates is used to underscore that qualified immunity protects defendants sued in their individual capacities, a distinction that becomes important to appellate briefing: a party challenging summary judgment must identify whether the challenge is to individual-capacity, official-capacity, or both theories—especially when qualified immunity was part of the district court’s reasoning.

E. Standards of review for summary judgment

  • Est. of Beauford v. Mesa Cnty., 35 F.4th 1248 (10th Cir. 2022)

The court reiterates the de novo summary-judgment standard. Yet the court’s affirmation is driven by waiver and forfeiture rules rather than evidentiary sufficiency.

F. Appellate briefing, waiver, forfeiture, reply-brief limits, and plain error

  • Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007)
  • Femedeer v. Haun, 227 F.3d 1244 (10th Cir. 2000) (quoting Hartmann v. Prudential Ins. Co. of Am., 9 F.3d 1207 (7th Cir. 1993))
  • Coones v. Bd. of Cnty. Comm'rs, 166 F.4th 1 (10th Cir. 2026)
  • MacArthur v. San Juan Cnty., 495 F.3d 1157 (10th Cir. 2007)
  • Adams v. FAA, 168 F.4th 1271 (10th Cir. 2026)
  • McNellis v. Douglas Cnty. Sch. Dist., 116 F.4th 1122 (10th Cir. 2024)
  • In re Syngenta AG MIR 162 Corn Litig., 61 F.4th 1126 (10th Cir. 2023)
  • United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019)
  • United States v. Bradley, 97 F.4th 1214 (10th Cir. 2024)
  • Alex W. v. Poudre Sch. Dist. R-1, 94 F.4th 1176 (10th Cir. 2024)
  • Richison v. Ernest Grp., Inc., 634 F.3d 1123 (10th Cir. 2011)
  • FDIC v. Kan. Bankers Sur. Co., 840 F.3d 1167 (10th Cir. 2016)
  • Beltran v. AuPairCare, Inc., 907 F.3d 1240 (10th Cir. 2018)

These cases supply the controlling framework the panel applies: opening-brief adequacy, the inability to cure defects through reply briefing, the need to object in the district court, and the requirement to argue plain error on appeal if an argument was not preserved.

G. Cross-appeal rule (limits on affirmance that benefits a nonappealing party)

  • Greenlaw v. United States, 554 U.S. 237 (2008)

The defendant proposed an alternative affirmance ground (no properly pleaded perceived-speech claim), but the panel declined to reach it because it would benefit the nonappealing party absent a cross-appeal, invoking Greenlaw v. United States.

3.2. Legal Reasoning

A. The political-association claim: waiver through inadequate opening briefing

The court’s political-association analysis is a textbook application of briefing rules. Citing Bronson v. Swensen and Femedeer v. Haun, the panel reiterates that an appellant must (i) clearly identify contentions, (ii) explain why the district court’s reasoning was wrong, and (iii) support arguments with authority and record citations. The panel adds the more pointed instruction from Coones v. Bd. of Cnty. Comm'rs: the “first task” is to explain why the district court’s decision was wrong; failure to engage the district court’s reasoning waives the challenge.

Applying those rules, the panel identifies multiple deficiencies:

  • Unclear theory: the opening brief oscillated between a familial-retaliation concept and a claim based on the plaintiff’s own political association.
  • Failure to identify the capacity posture: the brief did not specify whether it challenged individual-capacity rulings, official-capacity rulings, or both—despite qualified immunity having been a basis for the individual-capacity disposition.
  • No engagement with qualified immunity: the brief did not address the district court’s qualified-immunity reasoning at all.
  • Perfunctory argument: the panel relies on MacArthur v. San Juan Cnty. and Adams v. FAA to treat cursory discussion as insufficient to trigger merits review.
  • Reply-brief repair attempt rejected: using McNellis v. Douglas Cnty. Sch. Dist., the court refuses to consider arguments developed for the first time in reply.
  • Abandonment: the panel notes a waiver-through-abandonment principle (citing In re Syngenta AG MIR 162 Corn Litig.) where a party initially advances an issue but then intentionally decides to forgo it.

The result is categorical: without an adequate opening brief that targets the district court’s rationale, the appellate court will not reach the merits.

B. The free-speech claim: forfeiture in the district court and waiver on appeal for failure to argue plain error

The free-speech portion turns on preservation during the Rule 60(b) reconsideration proceedings. The defendant moved for reconsideration expressly arguing Heffernan. The plaintiff’s response did not mention Heffernan—a silence the defendant highlighted in reply and which the district court noted when granting reconsideration.

On appeal, the plaintiff tried to litigate Heffernan on the merits, arguing an “equal application” element was not met. The panel treats that as an unpreserved argument:

  • Under United States v. Leffler, failing to raise an argument in district court generally forfeits it, leaving only plain-error review.
  • Under Alex W. v. Poudre Sch. Dist. R-1, failure to argue plain error on appeal “marks the end of the road.”
  • Under United States v. Bradley (quoting Leffler), when plain error is not argued, the issue is treated as waived and the court declines to review it “for plain error or otherwise.”

The court also reinforces the institutional rationale (from Richison v. Ernest Grp., Inc.): appellate courts correct errors in the district court’s assessment of legal theories presented to it; they are not “second-shot” fora for theories not pressed below. It further cites FDIC v. Kan. Bankers Sur. Co. and Beltran v. AuPairCare, Inc. for routinely enforcing forfeiture where a party had ample opportunity to respond to an argument but failed to do so.

C. The cross-appeal boundary

Even though the defendant offered an alternative affirmance theory (no properly pleaded perceived-speech claim), the panel refused to consider it because it would change the judgment to benefit a nonappealing party absent a cross-appeal, consistent with Greenlaw v. United States. This portion quietly underscores that preservation rules constrain both sides: appellants must properly raise issues, and appellees must cross-appeal if seeking to enlarge their victory in a way the cross-appeal rule forbids.

3.3. Impact

Although designated nonprecedential, the decision’s reasoning is a pointed reminder—useful as persuasive authority—of the Tenth Circuit’s strict approach to issue preservation and appellate briefing in civil-rights employment-retaliation cases:

  • Merits can become unreachable: even potentially significant First Amendment questions (including how Heffernan applies post-Avant II) will not be decided if the appellant fails to preserve and present arguments correctly.
  • Rule 60(b) responses are not optional battlegrounds: when reconsideration briefing tees up a dispositive defense, silence can forfeit the issue for appeal—especially where the district court relies on that defense.
  • Plain-error doctrine matters in civil appeals: the court reaffirms that unpreserved arguments require a plain-error request; without it, review is denied.
  • Capacity and qualified-immunity framing must be explicit: the decision highlights the practical necessity of addressing individual vs. official capacity and qualified immunity when those doctrines underlie the judgment.

Practically, Avant is likely to be cited in future Tenth Circuit appeals—particularly § 1983 and public-employment cases—not for First Amendment doctrine, but for the enforcement of appellate waiver/forfeiture rules and the non-curative nature of reply briefing.

4. Complex Concepts Simplified

  • Qualified immunity: a doctrine shielding government officials from damages liability in their individual capacities unless they violated “clearly established” law. It does not apply the same way to official-capacity claims (which function like claims against the governmental entity).
  • Individual capacity vs. official capacity: suing an official personally (individual capacity) targets the official’s personal liability; suing in official capacity is effectively suing the government entity and typically implicates different defenses and remedies.
  • Garcetti/Pickering test: the balancing framework used to decide when a public employee’s speech is protected from employer retaliation. The five factors (as summarized in Rock v. Levinski) include whether the employee spoke as part of job duties, whether it was a matter of public concern, and causation.
  • Heffernan defense: discussed here as a “narrow affirmative defense” (per Duda v. Elder) in certain perceived-activity retaliation contexts where restrictions are neutral and constitutional. In this appeal, the court did not decide its elements or application; it refused merits review due to waiver.
  • Waiver vs. forfeiture: forfeiture usually means failing to raise an argument in time; waiver often means giving it up or (as used in Tenth Circuit practice) failing to invoke plain-error review after forfeiture. Either way, the consequence is often no merits review.
  • Plain error: a demanding appellate standard that can sometimes allow review of unpreserved issues; but it must be argued. If the appellant does not request plain-error review, the court will generally not undertake it.

5. Conclusion

Avant v. Doke stands chiefly for a procedural, practice-shaping rule: the Tenth Circuit will affirm without reaching the merits when an appellant (1) fails to adequately brief a claim in the opening brief—particularly by not engaging the district court’s reasoning and qualified-immunity posture— and (2) fails to preserve opposition to a dispositive defense in the district court and then fails to argue plain error on appeal.

Even in a factually and doctrinally rich First Amendment retaliation dispute—touching Garcetti/Pickering, perceived speech, and Heffernan—the court treats preservation and briefing discipline as threshold requirements. For litigants, the lesson is straightforward: appellate courts are not venues to reconstruct theories or salvage omissions; issues must be timely contested below and fully developed in the opening brief to obtain merits review.