Let’s party: Federal courts and the party presentation doctrine

We’ve all seen this high school movie: With the parents out of town, a teen decides to have a party. The host valiantly tries to keep it small – but to no avail. The doorbell rings, the host answers, every student from the high school pours in, and chaos ensues. This storyline plays out in the appellate world, albeit with less property damage and comic relief, in the party presentation doctrine, which attempts to answer the question: Who decides who (or what) comes to the party?

Under the party presentation doctrine, the parties frame the issues for decision (they set the guest list), and the court acts as a “neutral arbiter of matters the parties present.” Greenlaw v. U.S., 554 U.S. 237, 243 (2008). This doctrine is rooted in the fundamental principle of our legal system that courts decide cases or controversies brought to them by the parties. Or, as the late Chief Judge of the Eighth Circuit, Richard Arnold, more eloquently explained, “[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.” U.S. v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring).

While this seems simple in theory, the reality is, of course, more nuanced. An overly literal reading of the party presentation doctrine that strictly limits courts to deciding only the exact question as framed by the parties, using only the briefing as presented by the parties, would hamstring the courts. Courts must (and do) have some ability to shape the issues they will decide. They can, and sometimes must, raise jurisdictional issues sua sponte. They can request supplemental briefing on issues not sufficiently addressed by the parties, or to help clarify issues. They can order briefing on issues implicated, but not directly presented, in the appeal (although this typically happens when the issues in question have already been raised by the parties). They can also appoint amici to provide briefing in a variety of situations, including to argue in support of a judgment when the prevailing party chooses not to defend it on appeal. It is also worth noting that, where there are issues of waiver, invited error, or the cross-appeal rule, appellate courts are prohibited from raising new issues. The party presentation doctrine, then, functions not always as a wall, but more often as a semipermeable boundary that allows for some interaction between the parties and the courts as they hone in on the meat of the issues on appeal.

In United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020), the Supreme Court provided guidance on when an appellate court pushes the boundary of the party presentation doctrine too far. Sineneng-Smith was convicted of two counts of encouraging and inducing undocumented persons to remain in the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv). On appeal to the Ninth Circuit, Sineneng-Smith argued that (1) her conduct did not violate the statute, (2) the specific subsection amounted to a content-based restriction on speech that violated the First Amendment, and (3) the statute was impermissibly vague under the Fifth Amendment.

After oral argument, the Ninth Circuit filed an order inviting two named amici to file briefs addressing three additional questions, including one that Sineneng-Smith never raised: “Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem.” U.S. v. Sineneng-Smith, 910 F.3d 461, 469 (9th Cir. 2018). Notably, the Ninth Circuit’s briefing order did “not preclude any other interested organizations or groups from filing” amicus briefs on either side. Id. In addition, the invited (and uninvited) amici were, “not restricted to briefing the above-mentioned topics and may brief such further issues as they” “believe the law and the record calls for.” Id. Finally, the order noted that the parties were “permitted, but ‘not required,’ to file supplemental briefs ‘limited to responding to any and all” briefs submitted by the amici. Id. In short, the “party” got a bit out of hand. The Court received nine amicus briefs and a supplemental brief from both parties. Id. After a second oral argument, which included the amici, the Ninth Circuit ultimately agreed with the invited amici and held that § 1324(a)(1)(A)(iv) was unconstitutionally overbroad under the First Amendment. Id. at 485.

The Supreme Court granted certiorari, and in an unanimous opinion authored by Justice Ginsburg, held that the Ninth Circuit “departed so drastically from the principle of party presentation as to constitute an abuse of discretion.” 140 S.Ct. at 1578. While acknowledging the party presentation doctrine is “supple, not ironclad” and that a “modest initiating role for a court is appropriate” in some circumstances, the Court characterized the Ninth Circuit’s invitation for additional briefing as a “takeover of the appeal.” Id. at 1582. The Court reasoned that when the appeal was “poised for decision based upon the parties’ presentations,” the panel intervened and orchestrated an appellate re-do, with the contours of the new appeal defined by the panel and the amici rather than the parties. Id. at 1580. Therefore, the Court vacated the judgment and remanded the case for reconsideration in light of the “Ninth Circuit’s radical transformation of [the] case” that did not bear “a fair resemblance to the case shaped by the parties.” Id. at 1582.

Most high school movies have happier endings: the house is cleaned, broken friendships are restored, and valuable lessons are learned. But sadly, this is not always the case in real life or appellate practice. Even after Sineneng-Smith, courts at all levels, including the Supreme Court, continue to struggle to color within the lines of the party presentation doctrine. In her dissent in Edwards v. Vannoy, 141 S. Ct. 1547 (2021), Justice Sotomayor argued the majority violated the party presentation doctrine by effectively overruling a rule from Teague v. Lane, 498 U.S. 288 (1989), even though neither party asked the Court to do that. In his concurrence in Students for Fair Admissions, Inc. v. Harvard, 600 U.S. 181 (2023), Justice Gorsuch argued that Title VI of the Civil Rights Act of 1964 also prohibited affirmative action. But Justice Sotomayor’s dissent argued that Justice Gorsuch’s analysis would violate the party presentation doctrine because neither party advanced his interpretation of Title VI. In both cases, the party presentation doctrine lurked under the surface (in the footnotes), giving court-watchers insight into how different Justices think about how issues should be raised.

The same dynamic has played out on the Ninth Circuit. While Sineneng-Smith defined the outer limits of the party presentation doctrine, Ninth Circuit panels still wrestle with the question: what does it mean to have “presented an issue” in the first place?

In Does v. Wasden, 982 F.3d 784 (9th Cir. 2020), for example, the panel members disagreed on the fundamental issue of whether appellants properly challenged a district court’s ruling dismissing an ex post facto claim based on the punitive effect of a purportedly civil state statute. The panel-majority chalked up any ambiguity as to whether appellants properly raised the claim as “particularly inartful” briefing and stated “we [do not] believe we have cut these challenges out of whole cloth.” Id. at 792. Judge VanDyke disagreed and his dissent characterized the briefing as the “spaghetti approach” and the majority’s approach as “sort[ing] through the noodles” and “craft[ing] claims” for the appellants. Id. at 796 (VanDyke, J., dissenting in part).

In Machowski v. 333 N. Placentia Property, LLC, 38 F.4th 837 (9th Cir. 2022), the Ninth Circuit held that the district court abused its discretion by awarding attorneys’ fees based on a fee schedule set forth in a local rule rather than the lodestar method. The majority conceded that their analysis “may not perfectly track the arguments” that appellant presented in her briefing, but concluded they were “not hidebound by the precise arguments of counsel.” Id. at 843. Judge Milan Smith’s dissent found this to be “quite the understatement,” and explained that “[f]ar from just considering slightly different arguments than those presented in Machowski’s brief, the majority has manufactured an entirely distinct legal basis for revisiting the district court’s ruling.” Id. at 847 (M. Smith, J., dissenting).

In Chule-Lopez v. Garland, No. 20-70987, 2021 WL 4786906 (9th Cir. Oct. 14, 2021), two members of the panel voted to grant a petition for panel rehearing and then issued an amended memdispo that granted an asylum applicant’s petition for review. The majority found that, in arguing that there was a nexus between the petitioner’s persecution and her membership in a particular social group in her home country, the petitioner “mistakenly assumed there was an adverse finding on [the nexus issue] that needed to be overcome,” whereas the Board of Immigration Appeals had never considered whether the nexus existed at all. Id. at *2. The majority opined that their decision to grant the petition and remand to consider the nexus issue “respond[ed] directly to arguments that Petitioners presented” instead of “introduc[ing] a new ground for relief.” Id. Judge Collin’s dissent viewed the record differently, explaining that the majority “[i]nvok[ed] a ground that Petitioners have never raised” in a “takeover of the appeal,” which was particularly egregious because it “comes belatedly on rehearing.” Id. at *4–5 (Collins, J., dissenting in part).

If the Ninth Circuit’s decisions since Sineneng-Smith are any indication, the party presentation doctrine is still not an entirely settled area of law. We can only look forward to what may come in the potential Supreme Court sequel, Party Presentation! Here We Go Again.