eleventh circuit guidance On iSSue-arguMent diStinctiOn
Appellate Practice Section Co-Chairs: DimitriPeteves – Creed & Gowdy, P. A. & AlisonPreston – BrannockBerman & Seider
don’ t stake your appeal on a new reading of a text or on theories that turn on facts or doctrines that were irrelevant below.
In the U. S. Court of Appeals for the Eleventh Circuit, parties can raise new arguments but not new issues. What’ s the difference between an issue and an argument? That is“ murky.” 1 But the Eleventh Circuit recently provided substantial guidance on this question in Gould v. Interface, Inc., No. 23-12882( 11th Cir. Oct. 2, 2025).
Gould sued his former employer, Interface, claiming that the company violated his employment contract when it fired him. In district court, Gould argued that though the contract gave Interface discretion to fire him, Interface overstepped its discretion because it acted in bad faith. On appeal, however, Gould asserted that the contract did not, in fact, give Interface discretion to fire him. That shift in litigation strategy put the issue-argument distinction front and center.“ The question at the heart of th [ e ] appeal [ wa ] s whether Gould’ s new no-discretion theory [ wa ] s an‘ issue’ of the sort that is subject to forfeiture or a subsidiary‘ argument’ of the sort that isn’ t.” 2
In resolving that question, the Eleventh Circuit established a bright-line rule for new theories about a text’ s meaning and identified“ considerations” for determining whether a new theory
is an issue or argument. 3 First, the bright-line rule:“ When a party contends on appeal that a legal text means something different from what it posited below,” the Eleventh Circuit concluded,“ it crosses over to the‘ issue’ side of the issue-argument divide.” 4 That is because the party“ repudiate [ s ]” the interpretation that it advanced in district court. 5 By contrast, when a party marshals new“ canons” or“ authorities” in support of an interpretation, it simply“ sharpens” its position. 6
Next, the Eleventh Circuit identified general“ considerations” that indicate a theory is an issue. 7 A theory that relies on“ new facts” or a“ new category of law” is likely a new issue because both suggest that the theory requires“ an altogether different inquiry” than the district court conducted. 8 New arguments typically don’ t do that— instead, they offer new reasons why the party prevails under the facts and“ doctrinal line [ s ]” that were relevant in district court. 9
As for Gould’ s theory that Interface had no discretion to fire him: that was determined to be a new issue all the way down. Under the bright-line rule, it was a new issue because Gould claimed that his employment contract“ meant something” different than he had claimed in district court. 10 Moreover, the theory“ alter [ ed ] the factual landscape”( all the facts that the parties had developed in district court about bad faith were irrelevant), and it required the Eleventh Circuit to consider a new“ legal framework”( caselaw on contract interpretation rather than on bad faith). 11
So, in your Eleventh Circuit practice, try to heed the Goulden Rules: Don’ t stake your appeal on a new reading of a text or on theories that turn on facts or doctrines that were irrelevant below. n
1
Robert Schenck, Issue-Argument Distinction in the Federal and Florida Courts, HCBA Lawyer( Sep.-Oct. 2024).
2
Gould, slip op. 1.
3
Id. at 19.
4
Id. at 18.
5
Id. at 16
6
Id.
7
Id. at 19.
8
Id. at 19-20.
9
Id.
10
Id. at 18.
11
Id. at 19-21.
Author: Kevin A. Golembiewski – Florida Attorney General’ s Office
save the date: annual appellate Breakfast, february 5th.
1 4 J A N- F E B 2 0 2 6 | H C B A L A W Y E R