Anthony Caso of the California Appellate blog Opening Briefs has an interesting post, which I have reproduced below, in which he briefly discusses a recent decision from the federal Ninth Circuit Court of Appeals in which the court allowed the State of California to raise on appeal an argument it had not raised in the district court, reasoning that only claims are waived, not arguments. I am quite frankly stunned by this assertion, even notwithstanding that it does not apepar to have been central to the ultimate disposition of the case. It is contrary to a fundamental rule of appellate practice, and is, I believe, directly contrary to case law in almost every federal circuit. I will update with cites as soon as I am able. In the meantime, Anthony’s post is set forth in full below, and feel free to correct me if I am wrong:
The Ninth Circuit’s decision this week in California Pro-Life Council v. Randolph makes an interesting distinction between new arguments and new claims on appeal — the former are allowable but the latter forbidden.
At issue is whether the nonappealing party (the state in this case) was permitted to raise a new argument on appeal that they had not made in the District Court. The District Court had ruled that a presumption in the state’s regulations was not rebuttable. On appeal, however, the state argued for the first time that this presumption was rebuttable. The appellant attacked this as a ‘new argument on appeal.’
The court noted in a footnote, however, that the legal conclusions of the District Court in this case were reviewed de novo, and that there was no bar to the state raising a new argument on appeal. The bar to new matters on appeal, according to the panel, was limited to new claims.
A later footnote pointed out, however, that any arguments (new or otherwise) must be presented in the parties’ opening briefs. New arguments raised for the first time in a party’s reply brief will not be considered.
(Via The Opening Brief.)
Update: In a 1997 decision, Southwestern Pennsylvania Growth alliance v. Browner, 121 F.3d 106 (3d Cir.1997), then Third Circuit Judge Samuel Alito held that issues raised for the firts time on appeal are waived, except in “extraordinary circumstances.” While Judge Alito noted that courts have wide discretion to determine when such circumstcnes exist, this seems to me to be far different from what the Ninth Circuit has done in the California Pro Life Council case, in which it has essentially held that a party is always free to raise new issues, so long as it does not raise a new claim.
Filed under: Procedure, preservation of arguments
