August 31, 2017 Articles

First-Time Issues on Appeal: May They Ever Be Heard?

Finding unpreserved issues need not be met with despair.

By Sanford Hausler – August 31, 2017

As we all learned in law school, “[i]t is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). Because of this well-known rule, the first thing that we as appellate lawyers do in evaluating any appeal is check to ensure that any appealable issues have been properly preserved. Finding unpreserved issues is often met with despair.

But there are exceptions to this general rule. Courts have held that “the rule against considering arguments raised for the first time on appeal ‘is prudential, not jurisdictional.’” United States v. Brunner, 726 F.3d 299, 304 (2d Cir. 2013) (quoting Sniado v. Bank Austria AG, 378 F.3d 210, 213 (2d Cir. 2004)). Over time, courts have found the rule not to be applicable in a number of situations.

Of course, when applying such exceptions, courts often note that a determination to consider an issue raised for the first time on appeal is a matter of discretion, not right. Sniado, 378 F.3d at 213. Hence, the fact that a case arguably fits within an exception to the general rule does not mean that the circuit court must hear the issue. It only means that it may hear the issue.

The term exception may itself be a misnomer. While judicial opinions often refer to “exceptions” where courts might not apply the general rule, these “exceptions” are actually factors considered by courts in deciding whether to deviate from the rule, rather than clear exceptions. Appellate courts will usually abide by the general rule and decline to hear issues not raised in the district court, but, in the rare case, a knowledge of the factors may enable an attorney to convince a court to hear the appeal even though the issue had not been properly preserved.

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