Issue preclusion in successive appeals

Here is an interesting decision out of the U.S. Fifth Circuit concerning issue preclusion in successive appeals in the same case: Art Midwest, Inc. v. Clapper, No. 14-10973 (5th Cir. Nov. 9, 2015). The bottom line: an issue not argued in the first appeal was waived in the second.

In earlier proceedings, the district court rendered a judgment that (among other things) awarded 19% prejudgment interest on an award of damages. In the first appeal, the appellants argued that the district court miscalculated damages by double-counting. The Fifth Circuit remanded the case to the district court for recalculation of damages. On remand, the appellants argued that the award of 19% prejudgment interest was inappropriate. The district court refused to consider the argument, holding that it was foreclosed by the Fifth Circuit’s prior judgment. Appellants again appealed, this time arguing that the 19% interest rate was erroneous. But the Fifth Circuit held that the appellants waived the argument by failing to raise it in the first appeal.