However, a leading scholar on civil litigation rules, Stephen Yeazell of UCLA, said the law is clear that parties to lawsuits, including the government, can’t suddenly raise new arguments not presented to the district court judge who issued the initial ruling.
“It’s a pretty well-established principle that you cannot on appeal raise new arguments that you failed to raise in the court below. You have waived those arguments,” Yeazell said. “If they now want to take a different position and cite a different FOIA exemption it’s too late for that…I just offhand don’t think they have a whole lot of paddles in their canoe at this point.”
Yeazell also said the Justice Department is not entitled to reargue decided court cases just because there was a change of administration. “It doesn’t get a new bite at the apple in any of its cases…. The presumption is the sovereign has a kind of continuous life,” the professor said. “There’s no clause that says because you get a new attorney general you get to go back and start over again.”