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The law is a dynamic process, changing daily as new judicial decisions are issued. Just as, according to Heraclitus, one cannot step into the same river twice, the law too is continually in the process of transformation. This can pose problems for litigators. Given the extended duration of many lawsuits, counsel must be prepared to deal with changes in law. And this presents special questions for the appellate lawyer. Courts apply law in effect at time of decision The general rule is that courts apply the law in effect at the time a decision is rendered. Accordingly, if the law changes during the course of the suit, the court usually is obliged to apply the new law. See U.S. v. Schooner Peggy, 5 U.S. 103, 110 (1801). At the same time, it is well established that legal arguments may be waived if not properly preserved. In particular, a claim not presented in the trial court ordinarily cannot be raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 121 (1976). These two principles create a Scylla and Charybdis for litigators confronted with a change in law. On the one hand, their case should be governed by the new law. On the other hand, because the law changed in medias res, they might not have anticipated the change and thus run the risk that they waived the argument by not raising it in the court below. The U.S. Supreme Court addressed this issue in Grosso v. U.S., 390 U.S. 62 (1968). There, the law on the Fifth Amendment privilege against self-incrimination changed after the defendant was convicted in the district court. Even though the argument based on the new law had not been asserted in the lower court, a unanimous court held that the issue had not been waived in view of the state of the law at the time of the defendant’s trial. Id. at 71. The Supreme Court followed much the same approach in Stewart v. Dutra Const. Co., 543 U.S. 481 (2005). Indeed, in that case, Dutra had conceded below an issue of statutory construction, which was “necessary” in light of the controlling law of the circuit at the time. Id. at 497. Concluding that the court of appeals’ approach was error, the court entertained Dutra’s legal argument notwithstanding its earlier concession. A similar issue recently arose under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In Cooper Industries Inc. v. Aviall Services Inc., 543 U.S. 157 (2004), the Supreme Court, overturning the uniform decisions of numerous circuits, held that a potentially responsible party (PRP) that voluntarily cleaned up a hazardous waste site ordinarily does not have a cause of action against another PRP under � 113 of the act. In so ruling, the court left open the question of whether such an action would fall under � 107. Because a � 107 claim was not available under the circuit law at the time the case was litigated below and therefore had not been asserted by plaintiff, the court remanded to the 5th U.S. Circuit Court of Appeals to determine whether the � 107 issue had been waived and, if not, to decide that issue on the merits. Id. at 168-71. Justice Ruth Bader Ginsburg, joined by Justice John Paul Stevens, dissented from the remand and would have decided the � 107 question in the plaintiff’s favor. In particular, she believed that there was no basis for finding waiver because “[a] party obliged by circuit precedent to plead in a certain way can hardly be deemed to have waived [the claim].” Id. at 173 (Ginsburg, J., dissenting). The 3d U.S. Circuit Court of Appeals later squarely faced this waiver issue. In E.I. du Pont de Nemours and Co. v. U.S., 460 F.3d 515 (3d Cir. 2006), vacated on other grounds, 127 S. Ct. 2971 (2007), plaintiff, in conformity with governing circuit precedent, asserted a CERCLA cause of action under � 113 but not under � 107. Following Cooper Industries, the government argued that the plaintiff had waived any claim under � 107. The court of appeals rejected that argument, explaining that Cooper Industries had “significantly altered” the interpretation of CERCLA and that the prior circuit law had “foreclosed” the � 107 claim. 460 F.3d at 523, 528 n.17. Because the � 107 question took on ” ‘new importance due to [that] intervening development in the law,’ ” the court exercised its discretion to allow plaintiff to pursue that theory. Id. Cooper Industries and DuPont both involved the situation where the plaintiff could not plead the claim at issue under existing law that subsequently was altered. The waiver issue also can arise in various other contexts. For example, notwithstanding Fed. R. Civ. P. 51(c), the 7th Circuit has ruled that no waiver occurs when the defendant did not object to � indeed, proposed � a jury instruction that was correct under “firmly established” law at the time it was given but erroneous in light of a subsequent decision. See Brown v. M&M/Mars, 883 F.2d 505, 513 (7th Cir. 1989). “Given th[at] clear law . . . it would have been pointless to submit a different instruction.” Id. See also General Beverage Sales Co. v. East-Side Winery, 568 F.2d 1147, 1152 (7th Cir. 1978) (“objections are required so that the trial judge can correct any errors, but given the applicable law at the time he gave the instruction the district judge here committed no error”); Saunders v. State of R.I., 731 F.2d 81, 85 (1st Cir. 1984). Likewise, despite Fed. R. Civ. P. 12(h)(1), the affirmative defense of lack of personal jurisdiction is not waived on appeal by the defendant’s failure to raise it below where the defense rested on a new decision of the Supreme Court. See Holzsager v. Valley Hospital, 646 F.2d 792, 796 (2d Cir. 1981) (“clairvoyance” not required to avoid waiver). Most of the foregoing cases have arisen in the situation in which a subsequent decision squarely overturns previously controlling precedent. The waiver issue also can arise, however, when the change in law is not so clear cut. Cases vary on broad or strict approach to waiver Some cases have followed a broad approach. For instance, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 142-45 (1967), the Supreme Court held that no waiver occurred where the applicable First Amendment doctrine was still evolving. The court rejected the contrary conclusion of the court of appeals that the plaintiff’s ” ‘able and distinguished attorneys’ ” should “ have seen ‘the handwriting on the wall.’ ” Id. at 139, 143. See also Hegger v. Green, 646 F.2d (2d Cir. 1981) (no waiver where controlling law was unsettled and authorities were divided). By contrast, other cases have taken a strict view of the change in law necessary to avoid waiver. For example, in GenCorp Inc. v. Olin Corp., 477 F.3d 368, 374 (6th Cir. 2007), the 6th Circuit held that relief from judgment under Rule 60(b) could not be ordered where the intervening change in law did not reverse any controlling precedent in the circuit and the law in other circuits was unsettled and developing. See also Polites v. U.S., 364 U.S. 426, 433 (1960) (Rule 60(b) relief not available where subsequent decision did not make a controlling change in governing law); Castrignano v. E.R. Squibb & Sons, Inc., 900 F.2d 455 (1st Cir. 1990). Of course, in some cases, the failure to raise an issue could have nothing to do with the state of the law, but instead could reflect strategic or other considerations. For instance, in GenCorp, the plaintiff had noted the issue in the district court but declined to present it on appeal. The 6th Circuit had no trouble finding waiver regardless of the ensuing change in law. See 477 F.3d at 373-74. So, too, a court has found waiver where the defendant was advised by counsel of a potential legal defense but decided not to raise it, and instead to plead guilty, because of concerns about the expense of a trial and the possibility of a more severe sentence if convicted. Masterson v. United States, 293 F. Supp. 787 (D. Del. 1968). Not raising issue due to precedent is not waiver The general rule that emerges from these cases is that the failure to raise an issue in the trial court due to the controlling precedent at the time does not constitute a waiver on appeal where a subsequent change in the applicable law establishes a viable argument. Whether a later decision results in the requisite change in governing law will depend on the particular circumstances presented. Some cases consider this principle to be a rule of law that there will be no waiver, and thus the issue can be raised on appeal, if a change in law has occurred. See, e.g., Brown v. M&M/Mars, supra. Other cases, by contrast, regard it as a matter of discretion for the appellate court to decide whether it should allow the issue to be raised in light of the change of law. See, e.g. DuPont v. U.S., supra. If there truly has been a change in governing law and the prior failure to raise the issue was due to controlling precedent, it is very difficult to see what factors would justify the appellate court in exercising its discretion to refuse to consider the issue on the ground of waiver. Accordingly, the no-waiver doctrine should entitle the party to present the issue on appeal as a matter of law. Mark I. Levy is the chairman of the Supreme Court and appellate advocacy practice in the Washington office of Atlanta-based Kilpatrick Stockton. He served as counsel in the DuPont case discussed in this article. He can be reached at [email protected].

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