Commercial Litigation and Arbitration

Amicus Curiae — New Arguments and Issues of First Impression Raised by Amici Rather Than Parties Disregarded

From Solis v. Summit Contractors, Inc., 2009 U.S. App. LEXIS 3755 (8th Cir. Feb. 26, 2009):

The amici on behalf of Summit contend that the Secretary could not lawfully apply the multi-employer worksite policy without first adopting it through the informal rulemaking process of the Administrative Procedure Act. See 5 U.S.C. § 553. This argument may have some merit. *** However, we decline to consider this issue because it was raised to this court by the amici and not by the parties. See United States v. United Foods, Inc., 533 U.S. 405, 417 (2001) ("Just this Term we declined an invitation by an amicus to entertain new arguments to overturn a judgment, see Lopez v. Davis, 531 U.S. 230, 244, n.6 . . . (2001), and we consider it the better course to decline a party's suggestion for doing so in this case."); Davis v. United States, 512 U.S. 452, 457 n.* (1994) ("Although we will consider arguments raised only in an amicus brief, we are reluctant to do so when the issue is one of first impression . . . .") (citation omitted); United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981) ("We decline to consider [the argument raised by the amici] since it was not raised by either of the parties here or below."); Peltier v. Henman, 997 F.2d 461, 475 (8th Cir. 1993) (same).

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