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)
Let me start by saying thanks for reading, and for the link. With respect to the point of the post, I think it needs to be noted that the Supreme Coourt expressly state sin Yee that it is not clear whether the argument at issue had been raised in the court beolow or not, nor was it clear whether the argument had been addressed in the Court of Appeals. The Court further noted that, in its view, the pleadings could arguably be read as raising the regulatory takings argument, and held that parties are not limited by the “precise arguments” made in the court of appeals. How elastic this concept of “precise arguments” is isn’t clear, nor is it clear that the Court’s decision in Yee that “new arguments” are permissible on appeal can be applied outside the context of that case. I would venture that if your case is such that you are left arguing Yee, you’ve got more than one problem to contend with on appeal.