Party Waived Argument By Not Citing the Correct Circuit Authority in the District Court, Holds Split Eighth Circuit Panel

In Meinen v. Bi-State Development Agency, No. 231242 (8th Cir. May 16, 2024), a 2-1 Eighth Circuit panel held that the party’s failure to cite a favorable Eighth Circuit case in the district court thereby forfeited an legal argument based on that case. The dissent notes that this holding creates a split in the circuits.

Plaintiff appealed a Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim in a Title VII employment discrimination case. One of the claims was that he suffered retaliation for making a discrimination complaint at the agency. He was fired one to two months after making the complaint; plaintiff contended that such a period was close enough that court could infer a link between the protected Title VII activity and the adverse action.

The Eighth Circuit affirms the dismissal. Regarding the retaliation claim, the panel majority holds that “no facts are ever alleged that give rise to an inference of a retaliatory motive beyond temporal proximity.” While a 2017 circuit decision had held that a six-week period can be enough to infer causation based on timing alone, Wilson v. Ark. Dep’t of Hum. Servs., 850 F.3d 368 (8th Cir. 2017), the panel majority faults the plaintiff (in a footnote) for not citing that case in the district court. “Because Meinen neither argued nor cited Wilson in his filings below, the district court did not consider whether Wilson provided a basis for his retaliation claim to survive. The argument was not preserved for appeal.”

The dissent, by Judge Grasz, would hold that as long as the plaintiff made the factual argument below, it was not necessary to cite a specific Eighth Circuit case to preserve the issue for appeal. “[O]ur precedent requires only that a litigant raise the issue in the trial court to preserve an argument for appeal; not that he or she must cite to a particular case. The majority’s approach would make this court an outlier among the circuits: ‘Whether or not an issue is preserved in the trial court does not depend on what authorities the arguing party cites to that court.’ Alston v. Town of Brookline, 997 F.3d 23, 44 (1st Cir. 2021). Accord Templeton v. Jarmillo, 28 F.4th 618, 622 (5th Cir. 2022); United States v. Reed, 993 F.3d 441, 453 (6th Cir. 2021); Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 773 n.20 (7th Cir. 2010); United States v. Rapone, 131 F.3d 188, 196 (D.C. Cir. 1997).”