Appellate Attorney Greg May on Practice and Legal Developments in the Nation's Largest Federal Circuit

Parties and their counsel need to be wary of focusing too much on the trial court’s rationale for the decision on appeal. But Greg, you’re saying to yourself, isn’t that what the appeal is all about?

In a word: No. In the abstract, the ultimate issue in any appeal is whether the trial court’s decision was the correct result or not, not why it was or wasn’t the correct result. Thus, the Court of Appeals can affirm a judgment on any ground justified by the record. This makes it possible in some cases for the Court of Appeals to affirm on a ground different from the trial court’s faulty basis.

More, the appellate court may resort to alternate grounds even without first determining that the trial court erred in its stated grounds. Alternate grounds for affirmance may jump out from the record so strongly that the appellate court will latch onto them without any analysis of the trial court’s reasoning, now rendered beside the point.

The recent decision in Hells Canyon Preservation Council v. U. S. Forest Service, case no. 0735456 (9th Cir. Feb. 25, 2010) provides an excellent example of the Court of Appeals’ reliance on alternate grounds. Plaintiff in that case alleged three claims arising from the Forest Service’s alleged mismanagement of federal lands, and the trial court granted summary judgment to the forest service on all three claims on the ground that they were filed beyond the statute of limitations (i.e., were untimely). The Ninth Circuit Court of Appeals affirms as to all three claims, but relies on the statute of limitations for only one of them.

On one of the other counts, the Ninth holds that the judgment was correct because of the alternate ground the Forest Service had argued in the trial court: that the plaintiff lacked standing to sue because it lacked any injury. In fact, the Forest Service didn’t even try to defend the untimeliness rationale of the trial court on that claim and argued only the standing issue. It undoubtedly made that decision because the standing issue seemed so strong in its favor, and that proved to be correct, with the court stating, “We do not think that the question of plaintiffs’ standing to challenge the filing of the 1978 map is a difficult one.”

The Ninth’s resolution of the third claim is an even greater illustration of the appellate court’s power to affirm on alternate grounds. The basis on which it affirms with respect to the third claim — plaintiff’s failure to state a claim because it failed to allege any failure of the Forest Service to take a required action — was apparently never even raised in the trial court. (At least, the court makes no mention of it.)

Hells Canyon is a reminder to parties to look outside the rationale of the trial court when evaluating their prospects on appeal. A prospective appellant should not just evaluate the viability of his argument in terms of the correctness of the trial court’s reasoning, nor should an appellee who is trying to decide whether settlement makes more sense than fighting the appeal. Each needs to make sure that he examines the record as a whole for other — and perhaps stronger — support for the adverse judgment, and take into account the possibility that the appellate court will affirm on that alternate ground.