Background
Gary Avant, a truck driver for Muskogee County, was fired after his family publicly supported the opponent of County Commissioner Ken Doke. Avant sued Doke under Section nineteen eighty-three of Title forty-two of the United States Code, alleging First Amendment retaliation for political association and free speech. The district court initially granted summary judgment to Doke on the political association claim based on qualified immunity. The court also identified an unpled free speech claim and denied summary judgment on that basis, a ruling that was vacated and remanded twice due to procedural issues and the application of the Heffernan defense. On the third remand, the district court granted summary judgment to Doke in both capacities, citing the Heffernan defense and Avant’s failure to oppose it.
The court’s reasoning
The court reviewed the grant of summary judgment de novo. It affirmed the judgment because the plaintiff waived both of his primary arguments. Regarding the political association claim, the court found the plaintiff’s opening brief failed to clearly identify the error, did not explain why the district court’s reasoning was wrong, and abandoned arguments in the reply brief. Regarding the free speech claim, the court found the plaintiff waived the issue by failing to oppose the Heffernan defense in his response to the motion for reconsideration in the district court. The court noted that failing to raise an argument in the district court typically forfeits it, and the plaintiff did not argue plain error on appeal.
What it means going forward
Public employees and officials are reminded that appellate arguments must be clearly developed in opening briefs and that defenses raised in district court motions must be actively opposed to preserve issues for appeal. The decision reinforces strict waiver rules in the Tenth Circuit for arguments not raised or adequately supported.