The Seventh Circuit explained the difference between conceding an issue for purposes of an appeal and waiving the issue outright.
February 9, 2023
In Bradley v. Village of University Park, the Seventh Circuit determined that defendants had waived an issue by conceding it in a prior appeal. In doing so, the court explained the difference between conceding an issue for purposes of an appeal and waiving the issue such that it could not be disputed on remand.
The Bradley Litigation
Bradley arose from a former police chief’s due process claim against the village that once employed him and the village’s mayor. The district court initially ruled for the defendants. When the former police chief appealed, the defendants conceded that he had a property interest in his job. But they argued that he received sufficient process.
The Seventh Circuit reversed and remanded for further proceedings. And on remand, the defendants argued that the former chief did not have a property interest in his job. The district court entertained this argument and eventually ruled in favor of the defendants again.
The Second Bradley Appeal
In a second appeal, the Seventh Circuit held that the defendants had waived the property-right issue in the first appeal, such that they could no longer argue that the former chief lacked a property interest.
A Primer on Waiver
The Seventh Circuit discussed waiver at some length. The court first distinguished between conceding issues for purposes of an appeal and waiving issues on appeal. A concession for purposes of appeal essentially assumes something for the sake of argument—the litigant does not concede the issue definitively, but it does so only to focus the appeal. But litigants can also waive issues on appeal, which prevents those litigants from contesting the issue in any future proceedings (such as a remand).
The Seventh Circuit then explained that waiver can be different for appellants and appellees. Appellants often waive issues by failing to raise them at the appropriate time:
An appellant may waive a non-jurisdictional issue or argument in many ways, such as by failing to raise the issue or argument in the district court, either at all or in a timely fashion, by failing to raise it at all in the party’s opening brief on appeal, by failing to present a developed argument on appeal that engages with the reasoning of the district court, or by failing to respond in a reply brief to a new argument raised by appellee.
Appellees can similarly waive issues by not making them:
An appellee may also waive arguments by not raising them in a timely way in the district court, by failing to respond to an appellant’s arguments at all, or by failing to offer a coherent, supported argument, among other grounds.
But “[w]aiver is not precisely symmetrical for appellees and appellants.” Appellees do not waive issues by failing to argue alternative grounds for an affirmance. “An appellee may have tactical, strategic, or financial reasons to seek to preserve a victory on a narrow ground, without wanting to fight all possible theories.” So “arguing alternative grounds for affirmance is a privilege rather than a duty.” (Quotation marks omitted.)
Waiver in Bradley
Turning back to Bradley, the Seventh Circuit concluded that the defendants had waived the property-right issue in the first appeal. In their briefing, the defendants said that any discussion of a property interest was irrelevant because the issue was not disputed:
In this case, the Village Defendants do not contest that Plaintiff had a protected property interest in his employment. Hence, Plaintiff’s discussion of that topic in his opening Appellant’s brief is superfluous. The only question before this Court is the level of process due.
This language—coupled with similar language at oral argument—amounted to a waiver. There was no qualifying language, such as “for purposes of this appeal.” And the defendants arguments to the contrary—such as contending that the words “in this case” meant “in this appeal”—were unavailing.
Bradley v. Village of University Park, 2023 WL 1488351 (7th Cir. Feb. 3, 2023), available at the Seventh Circuit and Westlaw