Rule 28 Noncompliance in Pro Se Bankruptcy Appeals: Frivolous, Incoherent Briefing Warrants Affirmance

Introduction

Rusk v. Beutler (10th Cir. Aug. 11, 2026) arises from a Chapter 13 bankruptcy in which debtor-appellant Zachary Rusk, proceeding pro se on appeal, challenged orders entered after his plan was confirmed. During the bankruptcy, Rusk’s attorney, Derek Beutler, moved to withdraw due to a breakdown in communication. Rusk responded with a combined motion seeking to strike, hold Beutler in contempt, and impose sanctions, accusing counsel of serious misconduct.

The bankruptcy court denied Rusk’s motion and granted Beutler’s motion to withdraw. The Bankruptcy Appellate Panel (BAP) affirmed. Rusk then appealed to the Tenth Circuit under 28 U.S.C. § 158(d)(1). The core appellate issue was not the underlying merits of withdrawal or sanctions, but whether Rusk’s opening brief presented any intelligible, legally supported argument showing error.

Summary of the Opinion

The Tenth Circuit affirmed the BAP (and thus the bankruptcy court) because the appeal was frivolous and the opening brief failed to present any coherent argument explaining how the bankruptcy court erred. The court reiterated that while pro se filings are liberally construed, the court will not manufacture arguments or scour the record to construct an appellant’s case.

The panel characterized the opening brief as a collection of “incomprehensible statements” and disconnected references to constitutional provisions and other doctrines without any explanation of relevance to the bankruptcy orders under review. Because Rusk advanced no non-frivolous, properly supported appellate argument, affirmance was required.

Analysis

Precedents Cited

  • In re Johnson, 575 F.3d 1079 (10th Cir. 2009)
    The court anchored the appellate posture: even when the appeal is taken from the BAP’s opinion, “it is the decision of the bankruptcy court that we review.” This frames the task of an appellant: identify error in the bankruptcy court’s ruling, not simply express disagreement with the BAP’s affirmance.
  • Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005)
    This case supplied the controlling pro se principle: liberal construction does not mean the court will “formulate arguments or search the record” on the litigant’s behalf. The opinion relied on Garrett to justify refusing to translate Rusk’s disconnected assertions into appellate claims.
  • Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007)
    Cited for Rule 28’s minimum briefing requirements and the consequence of noncompliance. The court quoted Fed. R. App. P. 28(a)(8)(A): an opening brief must state contentions, reasons, and citations to authorities and record parts relied upon. Under Bronson, inadequate development can justify affirmance on forfeiture grounds.
  • Nixon v. City & Cnty. of Denver, 784 F.3d 1364 (10th Cir. 2015)
    Used for the principle that failure to address the reasoning of the decision under review can constitute waiver. The opinion situates waiver as a distinct path to affirmance when an appellant does not meaningfully confront the lower court’s rationale.
  • Stafford v. United States, 208 F.3d 1177 (10th Cir. 2000)
    Cited for affirmance where an appellant makes frivolous, nonsensical statements and fails to present non-frivolous arguments. The opinion also drew from Stafford to distinguish remedy: if proceeding in forma pauperis under 28 U.S.C. § 1915, frivolous appeals are dismissed under § 1915(e)(2)(b)(i); otherwise, the court may affirm.
  • Neitzke v. Williams, 490 U.S. 319 (1989)
    Provided the definition of “frivolous” as lacking “an arguable basis either in law or in fact.” The court used this to classify the appeal as frivolous given the absence of any articulated, legally grounded claim of error.
  • GeoMetWatch Corp. v. Behunin, 38 F.4th 1183 (10th Cir. 2022)
    Supported the conclusion that “scattered statements” and perfunctory references do not preserve or present appellate issues. This authority reinforced that even where some legal phrases appear, the brief must connect them to the challenged rulings with argument and citations.
  • United States v. Rahimi, 602 U.S. 680 (2024) and Gideon v. Wainwright, 372 U.S. 335 (1963)
    These were not used as substantive guides for decision; rather, the court referenced them to illustrate the non sequitur nature of Rusk’s briefing—invoking high-profile constitutional law without explaining relevance to a Chapter 13 counsel-withdrawal dispute.

Legal Reasoning

  1. Scope and target of review
    Under In re Johnson, the Tenth Circuit reviews the bankruptcy court’s decision. That requires the appellant to identify which bankruptcy rulings are challenged and why they are wrong. The court found it could not discern “what, if anything,” Rusk was appealing from the bankruptcy court’s order.
  2. Minimum requirements for an opening brief
    The court treated Fed. R. App. P. 28(a)(8)(A) as a gatekeeping requirement: arguments must be developed and supported by authority and record citations. Rusk’s submission lacked case-specific background, did not engage the bankruptcy court’s reasoning, and did not connect legal doctrines to the relief requested.
  3. Limits of liberal construction for pro se litigants
    While acknowledging liberal construction, the court applied Garrett v. Selby Connor Maddux & Janer to decline any role in reconstructing possible arguments. The opinion emphasizes institutional constraints: appellate courts are not advocacy engines for either side.
  4. Disposition mechanisms: forfeiture, waiver, and frivolousness
    The court synthesized Bronson v. Swensen (forfeiture through inadequate development), Nixon v. City & Cnty. of Denver (waiver by failing to address the decision’s reasoning), and Stafford v. United States (absence of non-frivolous argument) to justify affirmance. The opinion ultimately rested on the finding that Rusk “fails to advance any non-frivolous argument” and that his appeal was “frivolous” under Neitzke v. Williams.
  5. Remedial posture (affirm vs. dismiss)
    The footnote clarifies an important procedural distinction: frivolous appeals may be dismissed when an appellant seeks to proceed without prepayment under 28 U.S.C. § 1915(a), because § 1915(e)(2)(b)(i) mandates dismissal. Here, the court affirmed rather than dismissed, consistent with the procedural posture presented.

Impact

Although designated “not binding precedent” (except for law of the case, res judicata, and collateral estoppel), the decision consolidates and applies a pragmatic appellate rule with particular relevance to bankruptcy appeals: an appellant—pro se or represented—must present a coherent, record- and authority-supported argument in the opening brief, or the court will affirm without reaching the merits.

Practically, this opinion:

  • Encourages BAP and bankruptcy litigants to treat briefing compliance as dispositive, not technical.
  • Signals that “issue spotting” (listing constitutional clauses or doctrines) is not appellate advocacy; relevance must be explained.
  • Supports efficient docket management by providing a clear path to summary affirmance when briefing is incoherent or noncompliant.
  • Clarifies that the court’s solicitude for pro se litigants has firm limits grounded in neutrality and adversarial process.

Complex Concepts Simplified

  • Bankruptcy Appellate Panel (BAP): A specialized appellate tribunal that hears appeals from bankruptcy court decisions in certain circuits. Further review lies in the court of appeals under 28 U.S.C. § 158(d)(1).
  • Fed. R. App. P. 28(a)(8)(A): The rule requiring an appellant to explain what the lower court did wrong and why, with legal authority and record citations. Without this, the appellate court cannot fairly or efficiently adjudicate claimed errors.
  • Forfeiture vs. waiver: Forfeiture generally refers to failing to properly raise or develop an argument; waiver suggests an intentional abandonment. In practice, both can lead to losing the issue on appeal.
  • Frivolous appeal: Not merely weak—one that lacks any arguable legal or factual basis (Neitzke v. Williams).
  • Motion to withdraw (attorney): A request by counsel to end representation, often granted when communication breaks down, subject to court approval.
  • Hardship discharge (Chapter 13): A limited discharge available in narrow circumstances; the court here did not reach its standards because the appeal failed at the briefing stage.
  • Writ of prohibition: An extraordinary order restraining a lower court from acting outside its authority; it requires a clear, legally grounded showing, which the court found absent.

Conclusion

Rusk v. Beutler reinforces a durable appellate rule in the bankruptcy context: courts will not reach the merits when an appellant’s opening brief is incoherent, fails to identify reviewable error, and omits the authority-and-record support required by Fed. R. App. P. 28(a)(8)(A). By applying Garrett v. Selby Connor Maddux & Janer, Bronson v. Swensen, Nixon v. City & Cnty. of Denver, Stafford v. United States, and Neitzke v. Williams, the Tenth Circuit emphasized that liberal construction for pro se litigants does not permit courts to act as counsel. The decision’s principal significance lies in its clear message: meaningful appellate review requires meaningful appellate briefing.