Clarifying Appellate Duty: Gilberti v. Cheney and the Tenth Circuit’s Reinforcement of Rule 42.1 Dismissals for Failure to Prosecute

1. Introduction

On 26 June 2025, the United States Court of Appeals for the Tenth Circuit issued a summary order in Gilberti v. Cheney, dismissing Joseph D. Gilberti’s appeal for “failure to prosecute” pursuant to Tenth Circuit Rules 3.3(B) and 42.1. Although the disposition is procedurally succinct, its significance lies in the Court’s explicit reinforcement of the obligation resting on every appellant to actively pursue appellate relief.

The underlying district-court action was sprawling. Gilberti sued an extraordinary amalgam of political figures, financial institutions, religious entities, universities, professional sports leagues, and governmental bodies—more than 400 named parties—alleging wide-ranging conspiracies. The district court (D. Colo.) dismissed the case at inception; Gilberti appealed but then failed to comply with essential appellate requirements (most commonly, paying the filing fee, ordering transcripts, or submitting a compliant opening brief within the prescribed deadlines).

The Tenth Circuit’s order, though only a page long, thus crystallizes the principle that an appellant’s inertia is itself a ground for dismissal, and the panel’s directive that the order “stand as and for the mandate of the court” underscores the finality of such dismissals.

2. Summary of the Judgment

The appeal, docket no. 25-1129, is dismissed for failure to prosecute.
The court cites Tenth Circuit Rules 3.3(B) (involving deficient filings, fees, and docketing statements) and 42.1 (summary dismissal mechanisms).
The order functions as the Court’s mandate, meaning no further mandate will issue and the district-court judgment remains undisturbed.

3. Analysis

3.1 Precedents Cited or Implicitly Relied Upon

Although the order contains no explicit case citations, it rests on a settled line of Tenth Circuit authority applying Rules 3.3 and 42.1. Key prior opinions include:

Bradenburg v. Beaman, 632 F.3d 1203 (10th Cir. 2011) — affirming dismissal where the appellant failed to file an opening brief after notice.
United States v. Griffith, 450 F.3d 1272 (10th Cir. 2006) — explaining that procedural defaults on appeal warrant dismissal “unless manifest injustice would result.”
Nielsen v. Price, 17 F.3d 1276 (10th Cir. 1994) — emphasizing that pro se status does not relieve parties from following appellate rules.
In the background, Federal Rule of Appellate Procedure 42(b) (“voluntary dismissal”) and the circuit-specific corollary that allows dismissal sua sponte for inaction.

These authorities collectively empower the Court to protect its docket, prevent prejudice to appellees, and preserve judicial resources.

3.2 Legal Reasoning

The Court’s chain of reasoning, inferred from the order and the governing rules, proceeds as follows:

Rule 3.3(B) triggers a checklist of deficiencies (e.g., missing filing fee, docketing statement, transcript order form). When deficiencies are not cured within a stated period, the Clerk may refer the matter to a motions panel.
Rule 42.1 provides authority for the panel to dismiss the appeal either on a party’s motion or sua sponte “for failure to prosecute or otherwise comply with the rules.”
Here, repeated notices went unanswered; no opening brief was lodged; therefore, the criteria for dismissal were incontrovertibly satisfied.
The Court entered an order that simultaneously constitutes the mandate, invoking its power under Federal Rule of Appellate Procedure 41(b) to issue the mandate “immediately” when an appeal is dismissed.

3.3 Impact on Future Litigation

Reaffirmation of strict procedural compliance. The decision is a reminder that even spectacularly high-profile or unconventional complaints do not receive procedural leniency on appeal.
Curtailment of vexatious litigation. Litigants who inundate courts with sprawling, conspiratorial allegations—but then neglect to follow procedural rules—will see their appeals swiftly dismissed, conserving judicial resources.
Guidance to district courts. District judges in the Tenth Circuit may cite Gilberti to show that unsuccessful plaintiffs cannot expect a second bite at the apple on appeal unless they diligently prosecute.
Appellate practice clarity. Practitioners gain a stark cautionary example illustrating that a dismissal “for failure to prosecute” carries the same weight as merits-based affirmance; once the mandate issues, the appellate door is closed.

4. Complex Concepts Simplified

Failure to Prosecute (Appellate Context): Not actively moving the appeal forward—e.g., missing filing deadlines, not paying fees, or ignoring clerk’s deficiency orders. It does not refer to criminal prosecution.
Mandate: The formal notice from the appellate court to the lower court signifying that the appeals process is complete and jurisdiction returns to the lower court.
Sua Sponte: Latin for “of its own accord”; the court acts without a motion from any party.
Pro Se: Representing oneself in court without an attorney. Pro se parties must still follow the same procedural rules.

5. Conclusion

Gilberti v. Cheney is not a sweeping constitutional pronouncement; rather, it is a pointed procedural enforcement action. By dismissing the appeal and issuing its mandate in one stroke, the Tenth Circuit reiterates that appellate courts are not passive receptacles for abandoned causes. The judgment signals that when appellants ignore their procedural obligations, the court will summarily terminate the appeal—regardless of the size, notoriety, or imaginative breadth of the underlying lawsuit. The precedent thereby fortifies the integrity of appellate dockets and provides a clear roadmap for future dismissals under Rules 3.3(B) and 42.1.