We previously posted on Federal Rule of Appellate Procedure 28(i), which is the rule governing the adoption of part or all of another’s brief.We initially looked at decisions addressing the burden on a party to demonstrate how an adopted argument applies to that party’s specific issues, both legal and factual. We then followed up with a look at recent decisions refusing to adopt arguments regarding the sufficiency of the evidence as too fact-specific, as well as a potential issue regarding using Rule 28(i) to avoid the briefing word limit.In our third installment, we are looking at the adoption of arguments in a brief filed in a different appeal. Often, a similar or the same issue can come up in numerous district courts and percolate up to the courts of appeals. Rather than re-brief the issue multiple times, a party can be tempted to simply adopt an argument that has already been fully briefed in another appeal. That, however, may not be as simple as it sounds.In Yeh Ho v. Wells Fargo Bank, N. A., the Eleventh Circuit Court of Appeals summarily reje

Effective December 1, there are a couple of new rules that Fifth Circuit practitioners should be aware of. The first is a change to Federal Rule of Appellate Procedure 28. The revised rule eliminates the separate "Statement of the Case" from the required parts of a brief.

We previously wrote about the requirements for joining in a co-party’s brief or motion to avoid waiver issues. Since our original post, federal appellate courts have continued to hold that a party who seeks to adopt the arguments of co-party to an appeal pursuant to Federal Rule of Appellate Procedure 28(i) must specifically and explicitly identify those issues and arguments it wishes to adopt. Many courts strictly enforce this requirement, as they refuse to “scour[] the record” to determine which issues are applicable.

Here’s how to avoid common pitfalls.Tips: Federal Rule of Appellate Procedure 28(a)(4) sets out the four critical points that must be included in all jurisdictional statements in an appellant’s brief: The basis for the district court or agency’s jurisdiction; The basis of the appellate court’s jurisdiction; The relevant dates demonstrating that the appeal or petition is timely; and Information establishing either finality of the existence of a relevant exception to the final judgment rule.Id. at *1. Federal Rule of Appellate Procedure 28(b) provides that the appellee’s brief does not need to include this information “unless the appellee is dissatisfied with the appellant’s statement.”

Id. at 5.http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0245n-06.pdfAppellate Procedure In In re Target Corp. Customer Data Security Breach Litig., No. 15-3909 (8th Cir. May 2, 2017), a divided panel of the Eighth Circuit held that a letter submitted after the submission of another party's brief on appeal is sufficient to adopt that party's arguments under Federal Rule of Appellate Procedure 28(i). The court thus rejected the argument that only arguments on an issue actually mentioned in the party's own brief may be incorporated under Rule 28(i):Olson (the party adopting part of another’s brief) filed his brief before Sciaroni.

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.

On occasion, we have gone so far as to decline consideration of the merits of his client’s appeal as a result. See, e.g., Sioson, 303 F.3d at 459-60 (stating that “[p]erhaps counsel for Appellant [Williams] intends that we form an argument for him . . . [b]ut that is simply not our job, at least in a counseled case,” and dismissing the appeal for failure to comply with Fed. R. App. P. 28); Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (noting “the several erroneous legal arguments advanced by [plaintiff’s] counsel in the district court and on this appeal”); see also Quoka v. City of West Haven, 64 Fed. App. 830, 832 (2d Cir. 2003) (unpublished decision) (noting that Williams failed “to comply with Local Rule 56(a)(3), which requires that each assertion in a Rule 56(a) statement be followed by a citation to an affidavit or admissible evidence supporting the assertion”); MacGovern v. Hamilton Sunstrand Corp., 50 Fed. App. 59, 60 (2d Cir. 2002) (unpublished decision) (deciding the appeal in spite of the fact that “[w]e rather doubt that the Appellant’s Brief meets the requirements of [Fed. R. App. P.] 28(a)” because “the brief barely applies that law to those facts”); Miner v. Sheridan, 199 F.3d 1322 (2d Cir. 1999) (unpublished decision) (affirming district court’s grant of summary judgment against plaintiff because of William’s failure to provide a statement of

But among the reasons why the brief was rejected was this:The brief does not contain the standard of review, or the standard of review must appear within the argument of the brief, either in the discussion of each issue or under separate heading before discussion of the issues. Fed. R. App. P. 28(a)(8); Fed. R. App. P. 28.1(c)(1)-(2).As you can see, the Court references FRAP 28(a)(8), which reads (the reference to FRAP 28.1 just refers back to 28(a)):Briefs(a) Appellant’s BriefThe appellant’s brief must contain, under appropriate headings and in the order indicated:...(8) the argument, which must contain:(A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appeallant relies;(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heaing placed before the discussion of the issues);Based on the citation to FRAP 28(a)(8), the Court seems to have concluded that it was not enough that the brief included the Standard of Review.

34.) Federal Rule of Appellate Procedure 28(a)(8)(A) provides that the argument section of an appellate brief must contain “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A).

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.”