Faithful readers of this blog are aware of my criticism of the overuse of “waiver” by appellate courts. The first problem is that the term “waiver” is technically incorrect; “forfeiture” is actually the correct one. “Waiver” means something slightly different, namely, the affirmative disavowal of a claim or argument. See Wood v. Milyard, 132 S. Ct. 1826, 1832 n.4 (2012) (“A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve.” (citation omitted)); Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (“Although jurists often use the words interchangeably, forfeiture is the failure to make the timely assertion of a right[;] waiver is the intentional relinquishment or abandonment of a known right.” (citations omitted) (internal quotation marks omitted)).
The real problem is that neither the federal nor the Pennsylvania appellate courts consistently apply the rules concerning when one waives an “issue” or “argument” by failing to assert it at the trial level. The Pennsylvania Rules of Appellate Procedure provide that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa. R.A.P. 302(a). The rule only precludes the raising of new “issues”—not new “arguments”—for the first time on appeal. The Pennsylvania Superior Court nevertheless extends this waiver rule and refuses to consider “arguments” not presented below.
Federal Courts of Appeals will not address legal issues not advanced below.
Except when they do.
The Federal Rules of Appellate Procedure contain no counterpart to Pa.R.A.P. 302(a), so the case law on the subject is quite confused. In Singleton v. Wulff, 428 U.S. 106, 121 (1976), the Supreme Court observed that what questions may be resolved for the first time on appeal is left “to the discretion of the courts of appeals,” and that it “announce[d] no general rule.” It has also distinguished between bringing a new “claim” before the court, which is not allowed absent an exception, and bringing a new “argument” before the court, which often is. In Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 382-83 (1995), it held that if a claim is properly before the court, then it may consider any number of new arguments or theories underlying that claim.
The various circuits generally adhere at least nominally to the rule that arguments not raised before the district courts may not be advanced for the first time on appeal. However, the distinction between “claims,” “issues” and “arguments” is elusive. The Third Circuit purports to adhere to the rule that “arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review in this Court absent exceptional circumstances.” United States v. Petersen, 622 F.3d 196, 202 n.4 (3d Cir. 2010) (quoting United States v. Rose, 538 F.3d 175, 179 (3d Cir. 2008)). “This general rule serves several important judicial interests, protect[ing] litigants from unfair surprise; promot[ing] the finality of judgments and conserv[ing] judicial resources; and preventing district courts from being reversed on grounds that were never urged or argued before [them].” Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d Cir. 2009) (internal citations and quotations omitted; alterations in original). In Bowser v. Barnhart, 84 Fed. Appx. 241 (3d Cir. 2004), the Third Circuit held that arguing a point of law in a footnote in a brief to the District Court was insufficient to preserve it for appeal.
The Third Circuit will, however, dispense with the “rule” when it so desires. In Tri-M Group, LLC v. Sharp, 638 F.3d 406 (3d Cir. 2011), appellant advanced a new argument for the first time on appeal. The court felt compelled to provide a lengthy justification for considering the new argument, discussing “exceptional circumstances” and “public interest” and “justice” and at least one prior decision in which it had held that argument could be considered where it “is closely related to arguments” raised below. Id. at 416. In United States v. Turner, 718 F.3d 226 (3d Cir. 2013), the Third Circuit addressed the applicability of the Mandatory Victims Restitution Act (“MVRA”) because it was a pure question of law, and no “further development of the record would assist the resolution” of the case. Id. at 235.
Other circuits have also held that they will consider purely legal issues not advanced below that require no further development of facts. See, e.g., Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5, (D.C. Cir. 1992); Lesesne v. Doe, 712 F.3d 584, 588 (D.C. Cir. 2013) (agreeing to hear for the first time a “straightforward legal question”); Prime Time Int’l Co. v. Vilsack, 599 F.3d 678, 686 (D.C. Cir. 2010) (agreeing to hear a “straightforward legal question”); Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1030 (5th Cir. 1982); J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119, 125 (2d Cir. 2002) (agreeing to hear “purely legal questions”); Cemex, S.A. v. United States, 133 F.3d 897, 902 (Fed. Cir. 1998) (involving an issue of statutory interpretation). In other opinions, however, the same circuits have declined to address even purely legal arguments that were not advanced below.
In P.R. Tel. Co. v. T-Mobile P.R. LLC, 678 F.3d 49 (1st Cir. 2012), the First Circuit identified a non-exhaustive list of six factors to consider when deciding whether to allow an argument not made before the district court to be raised on appeal:
(1) whether the litigant’s failure to raise the issue has deprived the court of appeals of useful factfinding, or whether the issue was of a purely legal nature;
(2) whether the omitted argument raises an issue of constitutional magnitude;
(3) whether the argument was highly persuasive and failure to reach it would threaten a miscarriage of justice;
(4) whether considering the issue would cause prejudice or inequity to the adverse party;
(5) whether the failure to raise the issue was inadvertent and provided no tactical advantage; and
(6) whether the issue implicates “matters of great public moment.”
Id. at 58.
As even the most casual observer would suspect, all of this leaves ample room for unfettered judicial discretion and solicitude. Stated differently, if an appellate court wishes to entertain a new argument, it will do so. If not, it will find waiver. One day, a Court of Appeals will refuse to entertain an argument that was advanced only in a footnote to a brief submitted to the District Court, declaring that the argument was not “properly” or “sufficiently” advanced. The next day, the same court will agree to consider an argument that is “closely related” to the one contained in the trial court brief. The next day, the same court will conclude that an argument, though absent from Appellant’s brief to the District Court, should be reached because it is “of great public moment.” Or it will reach the argument in the interest of “justice.” And “justice”—like its cousin “equity”—is as long as the chancellor’s foot. How “sufficiently” must one advance an argument in the District Court to preserve it? How “closely related” must the argument contained in the appellate brief be to the argument in the brief to the District Court? The answer to these and other such questions often depends upon the whim or agenda of the appeals court judge to whom the case is assigned. A defense-oriented judge sitting on the court of appeals may decline to find that a defendant waived an argument in one case but eagerly conclude that a plaintiff waived an argument in the next. If, for example, a defendant moves for summary judgment, a plaintiff who files only a token response because he believes that the motion is baseless may find that he has waived many if not all substantive issues on appeal by failing to fully address them to the District Court. Or maybe not. A defendant who objects to evidence on the ground that it is hearsay may discover that he has waived any additional objections to relevancy by failing to make a detailed argument to the trial court. Or maybe not. As a result, the approaches taken by the various courts is unpredictable, inconsistent, and, sometimes, unfair.
The Pennsylvania Superior Court has improperly broadened the rule by prohibiting raising new “arguments” on appeal.
Although Pa. R.A.P. 302(a) provides that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal” the Superior Court consistently holds that even new “arguments” are prohibited. Several opinions from the Commonwealth Court, on the other hand, demonstrate an awareness by at least some of its judges that there is a distinction between an “issue” and an “argument.” Not surprisingly, where a “claim” ends and an “argument” begins may be difficult to understand or predict.
In Cesare v. DOT, Bureau of Driver Licensing, 16 A.3d 545, 550 (Pa. Cmwlth. 2011), in response to a waiver argument, the Commonwealth Court held that Pa. R.A.P. 302(a) does not require a litigant to make “identical arguments at each stage of his case.” Id. at 550. The issue must be preserved, but “this does not mean every argument is written in stone at the initial stage of litigation. Thus, logic dictates that an appellant can raise new arguments so long as they relate to the same issue.” Id. at 550. The Cesare court relied upon Wert v. DOT, Bureau of Driver Licensing, 821 A.2d 182, 186 (Pa. Cmwlth. 2003), in which an appellant raised new arguments in support of his privileges and immunity “issue.” The Court distinguished between the “issue” and the “arguments” in support. It also echoed the sentiments of some of the federal courts that if the new arguments do not require additional facts, then there is no prohibition against considering them. See also: Doe-Spun, Inc. v. Morgan, 502 A.2d 287 (Pa. Cmwlth. 1985) (permitting appellants to add an additional citation to their argument that they did not raise before the trial court because they raised the issue generally).
The Commonwealth Court cited to In re King’s Estate, 130 A.2d 245 (Pa. Super. 1957) in support of the proposition that an appellate court may affirm a decree for reasons which were not raised before or reasons not raised on appeal. Indeed, the Superior Court has repeatedly so held. See, e.g., Bell v. Dean, 5 A.3d 266, 273 (Pa. Super. 2010) That does not, however, mean that it will entertain new arguments from counsel. Indeed, the Superior Court has repeatedly held that a “new argument cannot be raised in support of an issue on appeal if it was not first presented before the trial court.” Newman Dev. Group of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645, 658 (Pa. Super. 2014), citing Schultz v. MMI Products, Inc., 30 A.3d 1224, 1230 (Pa. Super. 2011). The cases on this subject are legion.
The reasoning is, however, flawed and leads to unpredictable, inconsistent, and unfair results. To illustrate, let us consider a defendant who asks a trial court to suppress evidence seized in a “stop and frisk” on the ground that it was the fruit of an unconstitutional search and seizure. If the primary focus of his argument is that the search violated Terry, has he waived the argument that the Pennsylvania law holds the police to a higher standard? Has he waived the issue that the incriminating nature of the items seized were not “immediately apparent” under the “plain touch” doctrine? Is he precluded from citing other cases and making more focused arguments on appeal? If so, what is the point of requiring appellate briefs? The appeals court could simply examine the lower court record.
If one were to take the Commonwealth Court’s approach and allow new “arguments” in support of preserved “issues,” there is still tremendous room for abuse. What is the “issue” in the stop-and-frisk case? Is it “Did the police violate the defendant’s right, assured by the United States and/or Pennsylvania Constitutions, to be free from unreasonable search and seizure?” Or is it the more focused “Did the stop-and-frisk violate Terry v. Ohio?” If the “issue” is whether the search/seizure was unconstitutional, then it would seem that defendant could make additional legal arguments on appeal. If, however, the “issue” is more focused, defendant would be limited in the arguments that could be presented on appeal.
An appellate court that doesn’t wish to reach the issue could easily manipulate this case—and other similar ones—to find waiver. Is this fair? I think not. If the factual record is insufficient to address the broader issues, then waiver makes sense. If the issue pertains to trial errors that could have been corrected, then the advocate for waiver may have a point. But if the issue is purely legal, there is simply no justification. Waiver is a trap that stands in the way of justice. Attorneys make better arguments on appeal than they do in trial courts. This is particularly true in summary judgment motions, which trial courts often do not take particularly seriously. If no additional factual development is required, there is no reason why a plaintiff who lost such a motion should not, on appeal, be permitted to cite to new authorities and even advance arguably new legal theories. Otherwise, appellate review is reduced to a “gotcha” game.
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