Via Howard Bashman, last week a three-judge panel of the First Circuit Court of Appeals issued a per curiam opinion in Rodriguez-Machado v. Shinseki, affirming a District Court’s grant of summary judgment in an Age Discrimination in Employment Act case. It was a routine case that had been dismissed by the District Court for three commonplace reasons: the plaintiff, who worked at the Veterans Administration, (1) had not been injured enough in their workplace to have suffered an “adverse employment action”; (2) had not shown the hostility she suffered at work rose to the “level of severity or pervasiveness” required to state an ADEA claim; and (3) couldn’t show the adverse employment action she allegedly suffered was in retaliation for her filing a claim with the Equal Employment Opportunity Commission (EEOC).


More than 23,000 age discrimination charges were filed with the EEOC last year (EEOC / ADEA statistics here), and a significant number of those charges go on to be filed as lawsuits. There’s thus no dearth of these cases in the federal courts, which have decided more than one thousand ADEA cases over the past year, hundreds of them on similar grounds as Rodriguez-Machado v. Shinseki. It was, by and large, a routine case dismissed on routine grounds, on appeal for routine reasons, and the First Circuit could have just as easily looked at the District Court’s opinion, the briefs, and then affirmed dismissal of the discrimination claim, as federal appellate courts do every day.


But the First Circuit didn’t even reach the merits of the case. Instead, it blasted the plaintiff’s lawyer:


This case provides an important reminder to lawyers  and  litigants alike:  substantial  noncompliance” with important  appellate  rules,  in  and  of  itself,  constitutes sufficient  cause  to  dismiss  an  appeal. …

Unfortunately, plaintiff’s briefs are textbook examples of how not to litigate a case on appeal, infracting some important procedural rules. Again, claims of age discrimination, retaliation, and hostile work environment are often, as here, factually complicated and legally intricate. Yet plaintiff’s opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute. Essentially, she is 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. Shockingly still, plaintiff’s principal brief provides neither the necessary caselaw nor reasoned analysis to support her theories:  She mentions a few ADEA cases, but only in the context of setting out the accepted summary judgment standard – amazingly, she spends no time describing the legal contours of an ADEA claim. …

To wrap up: Plaintiff’s lackluster way offends some major appellate procedural rules and controlling caselaw. Being human, lawyers of course will not always dot every “i” and cross every “t” in trying to live up to their obligations under the rules. And occasional mistakes – minor infringements of the rules that neither create unfairness to one’s adversary nor impair the court’s ability to comprehend and scrutinize a party’s papers – typically will not warrant Draconian consequences. But major breaches call for severe decrees, and the violations here are certainly major, given that they cripple any attempt to review the issues intelligently.

Consequently, for the reasons batted around above, we dismiss plaintiff’s appeal with prejudice, as the caselaw permits in situations like this.


(Citations and quotations omitted.) And that was that: plaintiff’s case was dismissed, with no effort to review the merits.


Here are the offending briefs from the plaintiff, as well as the defendants’ responsive briefs. The plaintiff’s brief certainly isn’t a model of written argument (and it does, as the defendants pointed out, mistakenly claim an “abuse of discretion” standard for the appeal of a summary judgment, rather than a de novo standard), but did it really “cripple any attempt to review the issues intelligently,” as the First Circuit concluded? The defendant had no trouble comprehending the arguments and responding. Was it really “amazing,” as the First Circuit claimed, that the plaintiff didn’t reiterate “the legal contours of an ADEA claim” when the plaintiff’s brief states right at the onset that they’re not challenging the legal standard used by the District Court, but rather the District Court’s review of the evidence? 


I’m neither surprised nor bothered that the First Circuit was piqued by the plaintiff’s lawyer minimal effort in preparing the brief. But what’s wrong with an order demanding a new brief, or pointed questions at oral argument? The First Circuit, though, gave no notice to the plaintiff’s lawyer of the defective brief, and denied their request for oral argument. Do not pass Go, do not collect $200, go directly to Jail.


How could dismissal of the entire case be the appropriate remedy for a lawyer’s good-faith but inadequate brief? After all, as the First Circuit itself has repeatedly held, dismissal as a sanction is limited to situations of flagrant and inexcusable misconduct by parties. See, e.g., Esposito v. Home Depot USA, Inc., 590 F. 3d 72 (1st Cir. 2009)(citing, inter alia, Young v. Gordon 330 F.3d 76, 81 (1st Cir.2003) (“To be sure, dismissal ordinarily should be employed as a sanction only when a plaintiff’s misconduct is extreme.”); Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.2002) (recognizing that dismissal should not be granted “casually”).


I suppose it’s easy for some lawyers and judges safely ensconced in debates over procedure and dazzling displays of brilliant lawyering to forget that the rules exist for a reason: the fair and orderly disposition of disputes. The legal system is filled with lawyers, but it’s not supposed to be about their performances, nor about the judge’s convenience and preference; it’s supposed to be about the merits of the parties’ claims. Here, a non-lawyer party was given, like a bolt out of the blue, an order terminating their claim — without even the dignity of an appeal, much less an actual day in court in a jury trial — for nothing more than, in the First Circuit’s flippant language, “reasons batted around” relating solely to their lawyer’s briefing abilities.


(For more on writing briefs, peruse my Legal Writing tag, particularly this post about judge’s advice on writing briefs.)