Monday, March 30, 2015

Pay Heed, All Who Enter: Beware of the Rules


The Tenth Circuit issued an opinion last week that should serve as a reminder to all attorneys who practice before it – follow the rules of the court. In Alejandre-Gallegos v. Holder, Case No. 14-9567 (March 26, 2015) (unpublished), the Tenth Circuit dismissed a petition for review from the Board of Immigration Appeals. In doing so, the court issued a “bench slap” to an appellate attorney in the case for failing to follow the appellate rules regarding briefing.

The court detailed counsel’s performance as follows:
Now before us, Mr. Alejandre-Gallegos seeks to undo this decision but his attorney fails to give us any grounds on which we might. Counsel suggests the BIA relied on improper evidence but doesn’t supply any citations to the record where it went wrong on the facts (despite Fed. R. App. P. 28(a)(8)(A)). He suggests that the BIA applied the wrong legal standards but doesn’t cite any legal authority that might remotely support his claim. He even spends pages discussing another criminal charge against his client irrelevant to the one on which the BIA relied. Neither are counsel’s shortcomings confined to such important things. His statement of related cases actually includes argument (in defiance of 10th Cir. R. 28.2(C)(1)). He does not “cite the precise reference in the record where [each of his issues] was raised and ruled on” (as required by 10th Cir. R. 28.2(C)(2)) and his statement of the case includes no record citations at all (as required by Fed. R. App. P. 28(a)(6)). His brief contains no “summary of the argument.” Fed. R. App. P. 28(a)(7). He hasn’t even bothered to “alphabetically arrange[]” his table of authorities. Fed. R. App. P. 28(a)(3)). We could go on.
The court then explained that it was required to dismiss the appeal. But then the court did go on:
We confess reluctance about having to proceed so summarily and about having to chastise a professional colleague in this way. Everyone makes mistakes, and surely judges no less than lawyers. But the shortcomings here don’t just suggest a mistake, a few, or even a thoroughgoing disinterest in the rules of procedure. They suggest a lack of competent representation. For all we know from counsel’s garbled submission before us, his client may have a good claim or at least an arguable one: we just cannot tell.
The court discussed previous filings of the attorney over the last decade and noted that this was not a one-time occurrence. In fact, the court explained that the attorney had been warned time and time again about following the appellate rules. 

The court concluded that “[a]t some point, this court has a duty to do more than observe, record, and warn. It has a duty to act.”  Thus, the court directed the Clerk to initiate disciplinary proceedings against the attorney, including possible suspension from practice in the Tenth Circuit and restitution. 

The moral of the story is obvious. Any attorney practicing in the Tenth Circuit (or any court for that matter) should fear and respect the rules of procedure. They are not suggestions. They are gospel. Use the briefing checklist provided by the court. The Circuit's court clerks are incredibly helpful if you call them. The Circuit's website even has a section for "new or infrequent filers." Look at the sample briefs located in the back of the Practitioner’s Guide. Look at the Appeals section of our website, Kansasfpd.orgAnd if this is too overwhelming, the smart decision is probably to withdraw from the appeal and turn the case over to someone who is more comfortable handling appeals. 

But don’t be afraid. The Rules of Appellate Procedure are no more complicated than the rules of any other court in which you practice. They are just less familiar. So study and learn the rules of procedure, and you won’t get called for a technical foul.

-- Carl Folsom


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