The Ninth Circuit’s decision this week in 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.