An advocacy tip from the Ninth Circuit: Brief your issues!

By Kirsten Small

The Fourth Circuit hasn't published any decisions this week, so instead I'm going to borrow from the Ninth which this week issued a vivid reminder that if you don't brief an issue, you can't win on it--because the court won't consider it.

The case is a familiar one: The Christian Legal Society's suit against Hastings College of Law. CLS alleged that Hastings's "all comers" policy violated CLS's First Amendment rights, a position it advocated all the way to the Supreme Court. Then, in a single sentence in its reply brief, CSL alleged that "the peculiarity, incoherence, and suspect history of the all-comers policty all point to pretext." The Supreme Court affirmed the Ninth Circuit's First Amendment ruling and remanded the pretext claim, stating that the Ninth Circuit could consider that claim if it was preserved. CLS then moved for a remand from the Ninth Circuit back to the district court for consideration of the pretext claim.

On Wednesday, the Ninth Circuit denied the motion. Noting that appellate courts "review only issues that are argued specifically and distinctly in a party's opening brief," the court admonished that all claims "must be articulated" in the statement of issues, the summary of argument, and the argument itself. CLS did not raise the pretext argument in any portion of its Ninth Circuit briefs, nor did it allude to the claim during oral argument.

The court rejected as insufficient references to "pretext" and "selective enforcement" appeared in CLS's opening brief. "[A] bare assertion in the fact section of the opening brief will not preserve a legal argument that is never made."

"Judges are not like pigs, hunting for truffles buried in briefs," the court concluded. Claims that are not clearly articulated will not be considered by the court.