Tenth Circuit: Inadequate Appellate Briefing Waives Challenges, and Confidential Settlement Terms Merit Targeted Redaction (Not Blanket Sealing)

I. Introduction

Borsody v. Federal Express Corporation (10th Cir. Apr. 27, 2026) arises out of a “global” resolution of two intertwined sets of disputes between Andria Borsody (employee/plaintiff, proceeding pro se) and Federal Express Corporation (employer/defendant): a federal employment-discrimination action in the District of Kansas and state workers’ compensation proceedings. At mediation, the parties signed a handwritten term sheet specifying three payments (W-2 wages, 1099 compensatory damages, and a payment for a “George Pearson lien paid”). After mediation, Borsody refused to finalize a settlement that included payment to Pearson—an attorney who had asserted an attorney’s lien in the workers’ compensation matters.

The district court enforced the term sheet as a binding settlement agreement and rejected Borsody’s repeated efforts to relitigate the attorney-lien payment term and to resist tax-document requests needed to process settlement payments. On appeal, the Tenth Circuit confronted two clusters of issues: (1) whether Borsody properly preserved and briefed her merits challenges, and (2) whether filings revealing confidential settlement numbers should be sealed.

II. Summary of the Opinion

  • Merits: The Tenth Circuit affirmed enforcement of the term sheet. Most appellate issues were rejected as forfeited (not raised below) or waived (inadequately briefed on appeal). On the remaining issue—whether the term sheet was a binding contract—the court held Borsody failed to show the district court abused its discretion.
  • Sealing: The court rejected blanket sealing based solely on a confidentiality clause but ordered a narrower remedy: seal key exhibits (including the term sheet and emails discussing numbers) and redact settlement financial terms from other appellate filings.
  • Sanctions: FedEx’s embedded request for attorneys’ fees as sanctions was denied for noncompliance with Fed. R. App. P. 38 and 10th Cir. R. 39.2.

III. Analysis

A. Precedents Cited

1. Preservation, forfeiture, and waiver

The court used a familiar set of appellate gatekeeping authorities to dispose of most issues before reaching the merits:

  • Singleton v. Wulff, 428 U.S. 106, 120 (1976): the “general rule” that appellate courts do not consider issues “not passed upon below.” This supported the panel’s refusal to address Borsody’s newly raised claims (including arguments that FedEx breached the settlement and that a later settlement superseded the term sheet).
  • United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012) and United States v. Portillo-Uranga, 28 F.4th 168, 177 (10th Cir. 2022): forfeited issues can be reviewed only under plain error, which must be argued and satisfied. Because Borsody did not argue plain error, the court declined review.
  • Fed. R. App. P. 28(a)(8)(A) and United States v. Banks, 451 F.3d 721, 728 (10th Cir. 2006): arguments must be supported with reasoning and authority; unsupported claims will not be considered.
  • Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007), United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011), and Kelley v. City of Albuquerque, 542 F.3d 802, 819 (10th Cir. 2008): arguments not raised or inadequately developed in the opening brief are waived; “perfunctory” allegations do not invoke appellate review.
  • Kabba v. Mukasey, 530 F.3d 1239, 1248 n.5 (10th Cir. 2008): issues referenced earlier but not argued in the opening brief are deemed abandoned.
  • Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 n.6 (10th Cir. 2008): merely asserting trial-court error without a “reasoned argument” is insufficient.
  • Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005): pro se filings are construed liberally, but liberal construction does not eliminate basic briefing obligations.

Together, these authorities did most of the substantive work in the case: they converted many of Borsody’s “issues” into non-issues because they were either not preserved, not briefed, or not supported.

2. Enforcing a settlement agreement

  • Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004): the standard of review for a district court’s decision to enforce a settlement agreement is abuse of discretion, and reversal requires an erroneous legal conclusion or lack of rational evidentiary basis. This deferential standard framed Borsody’s remaining argument (that the term sheet was only an outline).

3. Authorities the court found unhelpful

  • Trolman v. Trolman, Glaser & Lichtman, P.C., 981 N.Y.S.2d 86 (N.Y. App. Div. 2014): cited by Borsody, but treated as non-pertinent.
  • Rapid Transit Lines, Inc. v. Wichita Devs., Inc., 435 F.2d 850, 852 (10th Cir. 1970): used to criticize thin legal support—suggesting either no supporting authority exists or the litigant expects the court to do the research.
  • Wood River Pipeline Co. v. Willbros Energy Servs. Co., 738 P.2d 866, 871 (Kan. 1987): invoked by Borsody for a signatures theory; the court deemed it inapplicable in context.

4. Sealing and the public right of access

  • Helm v. Kansas, 656 F.3d 1277, 1292-93 (10th Cir. 2011): appellate sealing is discretionary; the moving party must show a “real and substantial interest” outweighing public access to records informing the court’s decision. This supplied the governing test and the “real and substantial” burden FedEx had to meet.
  • Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241-42 (10th Cir. 2012): the panel relied on the distinction that sealing is disfavored where settlement terms are “central” to adjudicating substantive rights. Here, because waiver prevented substantive analysis of settlement terms, public interest in the precise numbers was lower—supporting a narrower protective approach.
  • Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755, 758 (10th Cir. 1993), aff’d, 511 U.S. 863 (1994): cited for the proposition that out-of-court settlements are desirable, reinforcing the policy interest in encouraging settlements (and, by implication, protecting sensitive settlement numbers when not essential to the court’s merits analysis).

5. Prior appellate posture

  • Borsody v. Fed. Express Corp., No. 25-3017, slip op. at 4 (10th Cir. March 14, 2025): the earlier appeal was dismissed for lack of jurisdiction as interlocutory. The current decision proceeded under final-judgment jurisdiction (28 U.S.C. § 1291).

B. Legal Reasoning

1. The court’s threshold move: narrowing the case by procedural doctrine

The panel’s primary reasoning was procedural: it enforced the rules that determine what an appellate court may consider. Two separate filters were applied:

  • Forfeiture (not raised below): Issues first presented on appeal were excluded under Singleton v. Wulff, absent a properly argued plain error showing under United States v. McGehee and United States v. Portillo-Uranga.
  • Waiver (inadequate appellate briefing): Issues listed as “issues” but unsupported with developed argument and authority were waived under Fed. R. App. P. 28(a)(8)(A) and cases like Bronson v. Swensen and Kelley v. City of Albuquerque.

This mattered substantively: Borsody’s most detailed complaints (tax withholding, alleged breach, and supersession by later proceedings) were never reached because they did not clear these thresholds.

2. Enforcing the term sheet: deference plus deficient appellate presentation

On the single remaining merits question—whether the term sheet was enforceable—the panel applied Shoels v. Klebold’s abuse-of-discretion standard. The court’s conclusion was driven less by an extended contract analysis and more by the appellant’s failure to show reversible error:

  • Borsody largely recycled arguments made below without explaining how the district court’s ruling lacked a rational basis or rested on legal error.
  • Her citations were thin and largely irrelevant (e.g., Trolman v. Trolman, Glaser & Lichtman, P.C.), drawing the critique from Rapid Transit Lines, Inc. v. Wichita Devs., Inc..
  • New theories raised in sealing-motion skirmishes (e.g., signature completeness) were not treated as a coherent merits challenge to the enforcement ruling.

3. Sealing: confidentiality is not dispositive; tailoring is required

The sealing portion is the most “law-developing” aspect of the order:

  • The panel rejected FedEx’s categorical position that a confidentiality clause “clearly” outweighs public access. Under Helm v. Kansas, the court demanded a more substantial justification than the parties’ private preference for secrecy.
  • The panel nevertheless found a practical middle ground: because waiver prevented substantive adjudication of settlement terms, the public’s interest in seeing the precise financial numbers was reduced (citing the contrast drawn in Colony Ins. Co. v. Burke).
  • The remedy was narrow tailoring: seal only the exhibits central to the confidential numbers (including the term sheet and related emails), and otherwise allow public filings with redactions limited to financial terms.

4. Sanctions: procedural compliance matters

Even though FedEx characterized Borsody’s filing practice as frivolous, the panel denied fees because the request was embedded in a response and did not comply with Fed. R. App. P. 38 or 10th Cir. R. 39.2. The decision underscores that sanctions requests require proper form and process, even when a party believes the merits support them.

C. Impact

  • Appellate practice (especially for pro se appellants): The decision reinforces that listing “issues” is not enough; undeveloped claims are waived, and unpreserved claims are forfeited absent a plain-error argument. Practically, this will continue to concentrate appellate outcomes around briefing quality and issue preservation, not merely the underlying dispute.
  • Settlement enforcement: The order exemplifies how deferential review (Shoels v. Klebold) makes settlement-enforcement orders hard to overturn without focused legal error identification and record-based argument.
  • Sealing doctrine in settlement disputes: The most notable forward-looking effect is the court’s insistence on targeted redaction rather than blanket sealing where settlement numbers are not central to the court’s merits analysis due to waiver. Parties relying on confidentiality clauses should expect to justify sealing under Helm v. Kansas and to accept narrower protective measures.
  • Sanctions practice: The denial signals that sanctions/fees requests must comply with rule-based procedures; embedding a request in a response risks denial regardless of perceived provocation.

IV. Complex Concepts Simplified

  • Forfeiture vs. waiver: Forfeiture typically means you failed to raise an argument in the trial court; an appellate court usually won’t consider it unless you meet a demanding “plain error” standard. Waiver (as used here) means you did not properly develop the argument in your opening appellate brief—so the court treats it as given up.
  • Plain error: A narrow doctrine allowing review of unpreserved issues, but only if the appellant explicitly argues and satisfies the multi-part standard. If you do not argue plain error, you usually lose the point automatically.
  • Abuse of discretion: A deferential review standard. The appellant must show the trial court made a legal mistake or a decision unsupported by the evidence—not merely that the appellate judges would have decided differently.
  • Sealing vs. redaction: Sealing hides an entire document from public view. Redaction keeps the document public but blacks out sensitive parts (here, settlement numbers), balancing transparency and confidentiality.
  • Attorney’s lien: A claim by a lawyer against settlement proceeds to secure payment of fees. Even if the lien’s validity is being litigated elsewhere, parties can still contract (in a settlement) to allocate money to satisfy it.

V. Conclusion

Borsody v. Federal Express Corporation is a procedural-forward appellate disposition with a practical takeaway: the Tenth Circuit will strictly enforce preservation and briefing rules—limiting merits review to properly raised and properly argued claims—while taking a nuanced approach to confidentiality on appeal. A confidentiality clause alone will not justify blanket sealing under Helm v. Kansas; instead, where settlement numbers are not essential to merits adjudication (as when waiver prevents substantive analysis), the court may prefer narrow sealing of key exhibits coupled with targeted redactions.