Preservation rules in the federal Courts of Appeals.

AuthorSpeir, Ian S.

    Litigation is a long journey, and legal arguments are perishable goods. Before beginning the journey, attorneys must consider not only which arguments to take with them, but also how to preserve those arguments for both trial and appeal. Appellate courts, particularly the federal courts of appeals, have developed a sophisticated, often complex, and sometimes conflicting set of preservation rules. These are part of the "winnowing process" of litigation, the "machinery by which courts narrow what remains to be decided." (1)

    Preservation rules are a key component of every advocate's toolkit. Trial counsel must know them. Appellate attorneys must use them. But the rules can also be a trap for the unwary. Sometimes, the argument that might have won on appeal wasn't timely or adequately raised at trial, and it doesn't survive the journey.

    This article surveys preservation rules in the federal courts of appeals, focusing in particular on the Tenth Circuit, which has addressed in detail some of the more peculiar iterations of preservation principles. We begin by providing some brief background on preservation, then delve into the related doctrines of waiver, forfeiture, and plain error. We next explore legal contexts in which these doctrines either do not apply or have unique application, such as subject-matter jurisdiction, sovereign immunity, and objections to evidence. Finally, we examine preservation rules in the context of appellate briefing.

    This survey is designed to assist both trial and appellate counsel as they navigate the federal courts' preservation rules. As important as the rules are, it's critical to remember the reasons behind them. Requiring parties to timely and adequately raise the arguments they want the court to address vindicates both structural and prudential values and ensures basic fairness to all parties. Balanced against these objectives is the court's "insistence that obvious injustice be promptly redressed." (2) Each of these considerations is in play when preservation is at issue. Appellate counsel therefore has a unique opportunity: to argue not only for application of a particular preservation rule, but to explain to the court why, in a particular case, that rule serves the interests it is designed to serve.


    Any discussion of preservation rules must begin with the nature of our adversarial system. Courts depend on the parties, as self-interested litigants, to raise the issues they want the court to rule on. Courts typically do not decide, or even discuss, issues that the parties have not raised. As the Supreme Court recently put it, "[t]he premise of our adversarial system is that ... courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." (3)

    The first place in which parties must raise their arguments is the district court. As a general rule, an argument not first presented to the district court is not a proper basis for appeal. (4) As the Tenth Circuit has explained,

    [i]n order to preserve the integrity of the appellate structure, we should not be considered a "second-shot" forum, a forum where secondary, back-up theories may be mounted for the first time.... Parties must be encouraged to "give it everything they've got" at the trial level. (5) To properly preserve an issue, a party must do more than simply raise it. She must both "aler[t] the district court to the issue and see[k] a ruling." (6) Arguments asserted but never pursued are not a basis for appeal. (7) Neither are "vague and ambiguous" arguments or "fleeting contention[s]" made in the district court. (8)

    Sometimes, a party advances one argument to the district court and a different but related argument on appeal. Typically, this won't do. For example, in Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., the Tenth Circuit found a "palpable distinction" between a challenge to the district court's analysis of a rule and a challenge to whether the rule applies at all. (9)

    There's an important caveat to all of these principles, one that's often overlooked. New arguments in support of the decision below--that is, in support of affirming the district court--are treated differently than novel appellate arguments for reversal. The court of appeals traditionally "may affirm on any basis supported by the record, even if it requires ruling on arguments not reached by the district court or even presented . . . on appeal." (10) This in turn means that an appellee is generally free to raise any argument in support of affirmance, so long as there's some basis in the record for it and the appellant has had a fair chance to address it. (11) By contrast, a party seeking reversal of the district court's decision based on a newly minted theory faces an uphill climb, one shaped by the principles of waiver, forfeiture, and plain error. We turn to those principles now.


    Common parlance and even some judicial decisions often fail to distinguish between arguments that are waived and arguments that are forfeited. The two concepts are distinct, and the differences can be, and often are, dispositive.

    Waiver requires some intentional act by a party. (12) It occurs when a party has "intentionally relinquished or abandoned" an argument either in the district court or on appeal. (13) For example, under the invited-error doctrine, a party may not induce action by the district court and later seek reversal on the same ground. (14) Likewise, a party may not appeal based on an argument she has expressly abandoned. (15) In either situation, a waiver has occurred, and the party "is not entitled to appellate relief." (16)

    Forfeiture is different. It happens not by a deliberate act but by neglecting to present an argument to the district court. Unlike a waived argument, a forfeited argument may be grounds for reversal on appeal, but only if affirming the district court would result in plain error. (18) Plain error generally requires the proponent of the new argument to show "(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." (19) If each of these elements is satisfied, the court "may exercise discretion to correct the error." (20)

    1. The Elements of Plain Error

      Plain error has the unique distinction of being both a standard of review and a multi-pronged test, and the court will grant relief only if each prong of the test is satisfied. Still, always bear in mind the driving force behind the test: preserving the court's discretion to correct "clear legal error that implicates a miscarriage of justice." (21) As the Seventh Circuit has aptly put it, relief is appropriate when a district court's error "shakes one's faith in the judicial process." (22)

      1. Error

        The first prong of the test goes to the merits of the forfeited argument. It requires the appellant to explain why the district court erred, or why error would otherwise result if the district court's ruling is affirmed. Sometimes, the court tackles this element head-on, concludes there was no error, and declines to address the remaining prongs of the test. (23) In this situation, the argument gets its day in court as if it were not forfeited.

      2. Plain

        The second prong of the test examines whether the alleged error is plain. To be plain, the error must be "clear or obvious under current law." (24) "Clear or obvious" means that there is controlling precedent on point, either from the Supreme Court, the relevant federal circuit, or (if the issue is one of state law) the relevant state courts. (25) In the absence of binding precedent, the clear weight of authority in other federal circuits might make an error plain. (26) By contrast, a circuit split will almost always foreclose a finding of plain error. (27)

        The error must be clear or obvious "under current law." (28) Sometimes, a district court's decision may be correct when rendered but erroneous at the time of appeal due to an intervening change in the law (such as new, binding precedent from the Supreme Court). Prior to 2013, there was a circuit split on how to handle this situation. The rule in the Tenth Circuit was to assess the error "at the time of appeal." (29) The Supreme Court recently affirmed this approach in Henderson v. United States, drawing on the basic principle that "an appellate court must apply the law in effect at the time it renders its decision." (30)

      3. Affects Substantial Rights.

        To satisfy the third prong of plain-error review, the appellant must show that the error affected her "substantial rights." (31) This generally requires a showing of prejudice--"a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." (32) Put otherwise, the appellant must convince the court of appeals that the error was not harmless. (33) "[A]n error affecting a substantial right of a party is an error which had a 'substantial influence' on the outcome or [which] leaves one in 'grave doubt' as to whether it had such effect." (34)

        This showing is easy when a district court's plainly erroneous ruling was dispositive of the case or of an issue. (35) In that situation, the error was clearly prejudicial. However, when error is predicated on a district court's incorrect evidentiary ruling or erroneous jury instruction, a showing of prejudice is much more difficult. The court of appeals must assess the error in light of the entire record (36) and must often make counterfactual predictions about how a factfinder would have decided the case in the absence of the error. (37)

        Although most kinds of error are amenable to harmless-error analysis under the third prong of plain-error review, the Supreme Court has recognized that "[t]here may be a special category of forfeited errors that can...

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