Founder
A recent decision from the Seventh Circuit Court of Appeals exemplifies the near impossibility of pursuing new arguments on appeal. In Thomas v. Carmichael, Case No. 23-2552, the Seventh Circuit affirmed summary judgment for federal prison officials on the plaintiff’s Eighth Amendment failure-to-protect claim. The Seventh Circuit held that the plaintiff forfeited opposition to qualified immunity on his deliberate-indifference claim by failing to address the defense in the district court.
Specifically, the burden shifted to plaintiff to defeat qualified immunity in the district court, but he was silent on the issue. On appeal, plaintiff’s new counsel attempted to contest qualified immunity but the Seventh Court declined, relying on a strict preservation doctrine. There are three key takeaways from the Court’s analysis. First, unraised arguments are waived or forfeited. Second, plain-error review in civil cases is exceptionally rare as courts require “exceptional circumstances,” plus a substantial-rights impact. Third, “exceptional circumstances” usually means systemic concerns, not case-specific hardship, and those concerns must implicate comity, federalism, conservation of judicial resources, or broad legal issues affecting many beyond the litigants. This triune captures why raising new issues on appeal is a futile endeavor.