The reply brief is in on behalf of Ladar Levison’s Lavabit, and it appears that Marcia Hofman, et al., has worked hard to salvage her strong and critical arguments from the government’s response of waiver. Did she do it? Is it enough to overcome the neglect below?
The brief relies on the Supreme Court opinion in Yee v. Escondido, a 1992 takings clause case where some weighty constitutional arguments were raised for the first time before the California Supreme Court, and then again before the big bench.
In this Court, petitioners attempt to challenge the ordinance on two additional grounds: They argue that it constitutes a denial of substantive due process and a regulatory taking. Neither of these claims is properly before us. The first was not raised or addressed below, and the second is not fairly included in the question on which we granted certiorari.
The opinion, by Justice O’Connor, goes on to do what the Supremes so often do. It provides a wealth of dicta for the side contrary to its ruling, to soften the blow rather than just say, “you lose.” But some of the dicta, which finds its way into the Lavabit reply, opens the door:
Petitioners unquestionably raised a taking claim in the state courts. The question whether the rent control ordinance took their property without compensation, in violation of the Fifth Amendment‘s Takings Clause, is thus properly before us. Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.
But what constitutes a federal claim properly raised isn’t nearly as broad as this might at first appear:
A litigant seeking review in this Court of a claim properly raised in the lower courts thus generally possesses the ability to frame the question to be decided in any way he chooses, without being limited to the manner in which the question was framed below.
Framing the question, however, is a very different thing than raising the question in the first place. In response, Lavabit contends:
The government argues that Lavabit did not object below to the pen-trap order, and that this alleged waiver prevents this Court from considering our arguments about the order’s propriety. Gov’t Br. 13–19. The record demonstrates otherwise. During its very first appearance in district court, Lavabit objected to providing its encryption keys pursuant to the pen-trap order, despite the fact that Mr. Levison was proceeding pro se at that point. The government then responded that the pen-trap point was irrelevant, because it had secured a search warrant, and further proceedings were conducted accordingly. Under the circumstances, it is hardly fair to blame Lavabit for the fact that the pen-trap order’s legality was not more thoroughly vetted in district court.
They play the pro se card, which is the best card they have, combined with the fairness card. In other words, Levison, reacting as a normal person would under the circumstances, had no reason to pursue arguments relating to the pen-trap order since the government begged off it, relying instead on the search warrant in its argument. However, this wasn’t because Levison conceded the pen-trap order, which he indeed objected to. Rather, any neglect in raising the arguments the government contends are waived on appeal is based on the government’s own argument.
This is good stuff. It smacks of equitable estoppel/detrimental reliance, that Levison’s lack of argument is attributable to the government’s failure to rely on the pen-trap order; the government can’t cry “waiver” now when it was their argument below that explains why Levison had no reason to pursue the arguments below.
Reliance on Yee, however, remains rather sketchy.
The basic rule of claim-preservation in federal courts is simple and flexible: “Once a federal claim is properly presented, a party can make any argument in support of that claim.” Yee, 503 U.S. at 534. In other words, once a claim is fairly presented to the district court, “parties are not limited to the precise arguments they made below.” Ibid. There are obvious limits to this principle—a due process claim may not be converted into an Eighth Amendment claim, for example, simply by labeling both as claims of “unconstitutionality.” See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 277 n.23 (1989). But Lavabit is not close to that line: it objected below to providing its encryption keys pursuant to the pen-trap order, just as it has here.
The question thus becomes one of horseshoes, how close is close enough?
The government, of course, is perfectly aware of all of this. Litigation is not “a game, like golf, with arbitrary rules to test the skill of the players”; rather, the waiver and forfeiture doctrines exist to facilitate the “‘winnowing process,’” such that courts know “what remains to be decided.” Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993) (Boudin, J.). The government told the district court that what remained to be decided was the propriety of its search warrant. If arguments on other matters have been waived, they have surely not been waived by Lavabit.
And in an excess of caution and, more likely, a wise embrace of reality, the reply goes on to ask the court to invoke its discretionary authority to consider the arguments:
At any rate, even if Lavabit had not made its objection to the pen-trap order below, there are many reasons that this Court should exercise its discretion to entertain Lavabit’s arguments nonetheless. Mr. Levison was proceeding pro se at the critical stage below, when the issue of the pen register’s legality was first broached; “the long-standing practice is to construe pro se pleadings liberally.” Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002). Indeed, as the initial hearing demonstrates, the government resisted efforts by Lavabit to secure counsel at an earlier date. Moreover, the legality of the pen-trap order presents a “pure question of law,” such that the judicial system has an interest in resolving it without “further delay.” Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999); see also Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360-61 (11th Cir. 1984) (same). Finally, the questions presented in this case are of immense public concern, as the media attention on this litigation amply demonstrates. See Ex parte Republic of Peru, 318 U.S. 578, 585 (1943) (whether to exercise discretionary judicial power properly informed by whether “a question of public importance is involved”).
Given the importance of the issues and arguments presented by this case, and that they are questions of law where the need for a factual predicate is satisfied and it’s otherwise ripe for review, this is a perfect candidate for discretionary review even if the court holds the arguments waived. That said, the argument against waiver is about as strong as could have been mustered under the circumstances, and isn’t entirely without merit.
If the court wants to rule on the real issues of the case, it appears that Lavabit has made a sufficiently strong and credible argument to provide the basis to do so. This was a valiant effort, and it’s hard to find fault with the efforts to salvage the critical issues presented in this case.