A Warning From the First Circuit: An Appeal Where Briefs Did Not Adequately Cite the Record or Argue Caselaw is Dismissed

Machado-Rodriguez v. Shinseki, 700 F.3d 48 (1st Cir. 2012).  This was an employment discrimination case, a type of lawsuit that the First Circuit Court of Appeals recognized is often complex.  Summary judgment was granted against the employee, who appealed to the First Circuit.  But “[u]nfortunately, plaintiff’s briefs are textbook examples of how not to litigate a case on appeal, infracting some important procedural rules” (emphasis in original).  The panel therefore dismissed her appeal with prejudice in a per curiam opinion. 

Plaintiff’s opening brief offered no “specific record cites to support her version of the facts,” despite Federal Rule of Appellate Procedure 28(a)(7), which requires a statement of facts “with appropriate references to the record.”  Nor did that brief provide “the necessary caselaw” or “reasoned analysis to support her theories.”  This violated Rule 28(a)(9), which calls for the argument section of a brief to include “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”  Her reply brief was little better, offering “a smattering of record cites” and no caselaw at all. 

As the First Circuit saw it, plaintiff was “asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story– and there is no reason for us to do either.”  Quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), the panel observed that “judges are not like pigs, hunting for truffles in the record.”  Since “[p]laintiff’s lackluster way offends some major appellate procedural rules and controlling caselaw,” the appeal was dismissed with prejudice. 

Such an extreme result does not occur often.  But it is useful to be reminded that it can occur.