May 30, 2018 Top Story

Appellate Review Allowed Despite Failure to Preserve Issue Below

Appellate court charitably distinguishes inadvertent forfeiture from intentional waiver

By C. Thea Pitzen

Few would think the topic suitable for most cocktail parties, but lawyers' watercooler chatter should include a federal appeals court decision that explores the difference between waiver and forfeiture.

The U.S. Court of Appeals for the Third Circuit reviewed a question of law, although the appellant failed to preserve the issue. The court held the appellant forfeited the issue rather than waived it. ABA Section of Litigation leaders caution that practitioners at both the trial and appellate court levels should learn this distinction.

Appellate Court Considered Forfeited Qualified Immunity Issue

The case centered on whether qualified immunity protected a school board and several of its members where the plaintiff-appellant alleged violations of his First Amendment rights. The trial court granted summary judgment in favor of the defendants. The appellate court affirmed as to the board members in their individual capacities, holding that qualified immunity barred the claims. As to the school board and the board members in their official capacities, however, the appellate court vacated the order and remanded the case for further proceedings.

In Owen v. City of Independence, the U.S. Supreme Court held that municipalities do not enjoy qualified immunity from damages flowing from constitutional violations. The appellate court explained that the trial court "overlooked the Supreme Court's precedent in Owen and improperly awarded qualified immunity" to the school board. However, the court also noted the appellant failed to preserve the issue of the board's immunity "by not addressing it at any level beyond mere generalities."

The court explained: "The effect of failing to preserve an argument will depend upon whether the argument has been forfeited or waived." Forfeiture occurs when a party fails to timely assert an argument—for example, by inadvertently failing to raise it. Waiver, however, occurs when a party intentionally relinquishes or abandons a known right.

Noting the "important interests underlying the preservation doctrine," the appellate court held that it would not reach a forfeited issue unless "exceptional circumstances" exist. Courts have found exceptional circumstances where either the public interest requires the court to hear an issue or a manifest injustice would result from failing to consider it. The court held both that the appellant's failure to raise the Owen issue was a forfeiture and that exceptional circumstances existed allowing the court to consider it.

The court's distinction between waiver and forfeiture is compelling, and practitioners at all stages of litigation should be aware, says Jason P. Kairalla, Miami, FL, cochair of the Programming Subcommittee of the Section of Litigation's Appellate Practice Committee. Whether to recognize the difference between waiver and forfeiture divides various circuit courts, observes Richard J. Ovelmen , Miami, FL, regular contributor to the Section's Appellate Practice Committee.

As a litigator, the distinction is critical because if you argue a point without placing much emphasis on it, a court may hold that you either waived or forfeited that argument, Ovelmen adds. If you forfeited the argument, you may be able to revive it, but the distinction depends on evidence of intent, he says.

Cases Raises Concerns for Appellate Attorneys

Despite the appellate court's citations to three sister circuit courts, this decision "does not necessarily represent a trend," says Thomas J. Donlon, vice-chair of the Section's Appellate Practice Committee. First, the other cases were "really focused on the Owen issue itself," Donlon notes.

Second, the cited cases were ones in which the issue was preservation at the trial court level, he says. In those cases, it appears counsel properly raised the issue before the appellate court, he observes. In this case, on the other hand, the issue was neither preserved in the trial court nor mentioned in the appellate court prior to the reply brief, he adds.

This case is much more troublesome than the earlier decisions it cites, Donlon says. Initially, the appellate court "talks about reasons why, in the normal course of business, appellate courts should not consider issues neither raised before the district court nor properly raised before the appellate court," observes Donlon. Then, the court discusses waiver versus forfeiture, based largely upon Supreme Court decisions dealing with waiver or forfeiture of a criminal defendant's rights, he adds.

The criminal context is "very different from what appellate attorneys normally think of as waiver of issues on appeal," Donlon says. Nevertheless, the appellate court undertook an "extensive discussion of the difference between forfeiture and waiver," and held that "waiver has to be knowing," Donlon explains.

By finding that appellate counsel's complete failure to raise an issue was inadvertent and therefore a forfeiture, the appellate court "allows–if not almost rewards–poor appellate advocacy," Donlon says. As an appellate attorney, the decision raises concerns that an appellant who does not raise an issue of law until the reply brief could actually benefit from doing so, he adds. The appellate court also appeared to disregard its own key point about the importance of the preservation rules by "reversing on grounds never urged or argued to the trial court," Donlon notes.

While Ovelmen agrees no trend exists in favor of this distinction between forfeiture and waiver, this case could help develop one, he says. While litigators should remember preservation is important, this case illustrates an exception, and it "will be interesting to see if a trend develops" among other appellate courts, he adds.

In this case, the appellate court faced a decision below that directly conflicted with controlling Supreme Court precedent that the appellate court felt legally bound to apply, Donlon opines. Under those circumstances, the appellate court appeared unwilling to allow procedural rules, including waiver, to mandate a result it clearly found unacceptable, he says. "One hopes that this is a type of opinion that is strictly limited to its facts and would not be a trend towards the treatment of unpreserved and improperly argued issues on appeal," he adds.

Key Takeaways for All Stages of Litigation

For litigators, this case has several key takeaways, Section leaders note. First, at the trial court level, carefully consider whether your win has a sufficient legal basis. It may be better to resolve a serious legal question before the trial court than to incur the time and expense of an appeal, Donlon advises.

You may win on an unexpected issue and question whether it would stand up on appeal. That case may be the "rare case in which the winning side wishes to file a motion for clarification," Donlon adds. Such decisions require close consultation with the client, he cautions.

This case also underscores the value of having appellate counsel look at the case with a fresh set of eyes, Donlon says. Appellate counsel may find new arguments or approaches that will help on appeal, but they may also find problems the trial court missed, he adds.

If you need to argue against this decision, "the best way to deal with this case is to highlight the language the court itself uses," Donlon counsels. Emphasize that this case involved truly exceptional circumstances clearly directed at the specific situation of the Owen case, he explains. Ovelmen advises to start with the well-established cases holding that appellate courts do not consider issues not properly preserved and highlighting the policies behind the preservation doctrine. Then, try to argue what happened in your particular case was a waiver, rather than a forfeiture, Ovelmen adds. Finally, argue exceptional circumstances do not exist if that argument is available to you, he concludes.

"If you are not dealing with this particular problem," the case may have limited application, says Donlan. Of course, the most relevant situation would be where a municipality was given qualified immunity in violation of a Supreme Court ruling. Otherwise, outside the Third Circuit, "this case shouldn't really have application to either the issue of preservation or the issue of waiver or forfeiture by the conduct of appellate counsel," Donlon argues. Ovelmen similarly questions whether the appellate court would have been as inclined to take up the forfeited issue if there had not been a directly controlling Supreme Court case.

This case serves as a valuable teaching point that litigators "should take preservation very, very seriously," Kairalla notes. Finally, "if you're in the trial court and you blew it, don't despair," Ovelmen says, as "there might be a way out." This case underscores that "obviously, it's never over until it's over," and the appellate court could view your error as a forfeiture and still take it up on appeal, he concludes.


C. Thea Pitzen is a contributing editor for Litigation News.

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