Brown v. Arizona -- The Scope of En Banc Review and Resuscitating Waived or Forfeited Issues

Brown v. Arizona rests on horrific facts. Bradford abused three women while a student at the University of Arizona. Brown brought an action seeking to impose liability on the university (state) for the abuse that she endured under Title IX, 20 U.S.C. §§ 1681–1688. The District Court and the three-judge panel decision rules against Brown on the context, authority, and indifference elements (of five elements of the claim for relief) for imposing liability. The issue centers around the context element. Brown changed her theory before the en banc court. I write to discuss how and why the Court allowed Brown to change her theory of the case not advanced in the District Court and not advanced to the three-judge panel. 

From the panel decision, Brown argued that:

she does not have to show that the University controlled the context of her abuse, only that the University controlled the context in which it improperly failed to act, i.e., Bradford's assaults on [two other students].

Judge Forrest, joined by Judge Nelson, described the dissent as rejecting Brown's theory. Judge W. Fletcher characterized the briefing: 

Brown argues that because the University had control over the context of Bradford's assaults on Student A and DeGroote, it necessarily had control over the context of Bradford's subsequent assaults on other university students including Brown, regardless of where in the community the assaults took place.

Judge Fletcher rejected that theory of the case and describes the facts supporting a different theory that satisfies the "context" element. Brown petitioned for en banc review. The majority of nonrecused judges voted to rehear the case en banc. Ordinarily, the en banc panel rehears the case without further briefing. It is clear that on the theory pressed in the District Court and before the three-judge panel that Brown loses. No judge accepted her "context" theory of the case. Brown asks for and the Court grants the opportunity to submit further briefing. 

On en banc review, Brown wins 8-3. Judge Forrest wrote the panel majority decision but was not on the en banc panel. Judge Fletcher writes the majority opinion. Judge Nelson, Judge Rawlinson, and Judge Lee write separate dissents. Judge Friedland responds to the waiver argument raised by Judge Nelson and Judge Rawlinson. We start with Judge Nelson's dissent.

Judge Nelson describes Brown has having "expressly disclaimed that position below and before the three-judge panel on appeal." Judge Nelson worries that "the majority encourages future plaintiffs to hed the ball on their arguments for strategic litigation advantage." As a practitioner before the Court of Appeals, I want to go on record and assure Judge Nelson and the rest of the Court that plaintiffs and appellants actually try to make the best attempt to frame the issues and theories. That attempt does not bind the courts to doing something that is different. For instance, in the seminal Erie Railroad Co. v. Tompkins, no party advocated the proposition adopted -- that the federal courts adopt and apply state court decisions construing the common law in a diversity action. The courts have a responsibility to articulate the law correctly even when the parties have chased the wrong rabbit down the wrong hole. 

Judge Friedland says that in her concurrence. Judge Friedland posits that if the panel had rejected Brown's claim on the theory pressed in an unpublished memorandum decision, the case would have died. Because the panel published the opinion and discussed the law of "context" at length in both the majority and dissenting opinions, "it is crucial that we get the law right." 

Judge Rawlinson expresses the vigorous and rigorous adherence to the twin pillars of waiver and forfeiture. Citing Hamer v. Neighborhood Hous. Servs. of Chi.:

Waiver is the “intentional relinquishment or abandonment of a known right.” Id. (citation omitted). Forfeiture is the “failure to make the timely assertion of a right.” Id. 

Waived issues are not reviewable. Forfeited issues are reviewed for plain error. Judge Rawlinson characterizes the disclaimed issue as one of forfeiture by the majority. Judge Rawlinson argues that no case allows the courts to review an argument "affirmatively disclaimed by a party." Judge Rawlinson would instead treat the disclaiming of a theory as one of waiver barring review of that issue. 

Judge Friedland responds that the Court cannot permit a published opinion to incorrectly state the law. Published opinions constitute precedent. It is the obligation of the en banc court to ensure that the body of precedent correctly states the law. 

The Court let Brown off the hook. The case presents compelling facts that cry for relief. Shifting theories from the district court to the court of appeals will almost always result in a complete and total loss. That does not mean that the opening brief in the court of appeals should not address the holding of the district court, it should. But now, Brown is undeniably the law of the circuit not only on Title IX but on the procedural ability under the right facts to shift the theory of the case and pray for the court's discretion.

Not planning on trying this, intentionally.

___________________________

Suggested Citation:

Lawrence Rohlfing, Brown v. Arizona -- The Scope of En Banc Review and Resuscitating Waived or Forfeited Issues , California Social Security Attorney (September 28, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.