In a comment to my post on new arguments on appeal, Pennsylvania Appellate Blog expresses surprise at the 9th Circuit’s conclusion that a party can raise new “arguments” (as distinguished from a new “claim”) on appeal. In fact, however, the United States Supreme Court has also noted the distinction between new “arguments” and new “claims” — ruling that litigants are free to make new arguments in support of their legal claims:
We must also reject respondent’s contention that the regulatory taking argument is not properly before us because it was not made below. It is unclear whether petitioners made this argument below: Portions of their complaint and briefing can be read either to argue a regulatory taking or to support their physical taking argument. For the same reason it is equally ambiguous whether the Court of Appeal addressed the issue. Yet petitioners’ regulatory taking argument stands in a posture different from their substantive due process claim.
Petitioners unquestionably raised a taking claim in the state courts. The question whether the rent control ordinance took their property without compensation, in violation of the Fifth Amendment’s Takings Clause, is thus properly before us. Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below. Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 78, n. 2, 100 L. Ed. 2d 62, 108 S. Ct. 1645 (1988);Gates, supra, at 219-220;Dewey v. Des Moines, 173 U.S. 193, 197-198, 43 L. Ed. 665, 19 S. Ct. 379 (1899).Petitioners’ arguments that the ordinance constitutes a taking in two different [*535] ways, by physical occupation and by regulation, are not separate claims. They are, rather, separate arguments in support of a single claim — that the ordinance effects an unconstitutional taking. Having raised a taking claim in the state courts, therefore, petitioners could have formulated any argument they liked in support of that claim here.
Yee v. City of Escondido, 503 U.S. 519, 534-535 (U.S. 1992)