In Gould v. Interface, Inc., No. 23-12883 (Oct. 2, 2025), the U.S. Court of Appeals for the Eleventh Circuit was dealing with a claim for wrongful termination of a tech CEO.
So what’s the case doing here? Skip forward to page 12 of the slip opinion, where the court deals with an oft-occurring argument: the appellant “waived” (forfeited, actually) a claim by failing to pursue it below. The general rule is that a litigant can waive a claim, but not an argument.
Okay, got it. But again, why is this opinion posted here? Well, the example the court uses to illustrate the difference between a “claim” and an “argument” is the (in)famous takings case, Yee v. City of Escondido, 503 U.S. 519 (1992). Takings mavens know that Yee is often cited in support of the argument that things like rent control do not force property owners to allow unwanted physical occupations of private property, but are merely regulation of an existing lessor/lessee relationship. (We think that view is incorrect, but our criticisms we shall save for another post.)
But we often cite Yee for its other principle: that there is but a single takings claim, although there may be several arguments to support that claim. Thus, there’s no “physical takings claim” or a “Penn Central claim.” No, they are all arguments in support of a single “regulatory takings” claim.
And that’s the example the Gould court used. Check it out:
In many respects, the Supreme Court’s decision in Yee v. City of Escondido, 503 U.S. 519 (1992), is the modern fountainhead of the issue-argument distinction. In the California state courts, the Yees, owners of a mobile-home park, had contended that a local rent-control ordinance effected a physical taking of their property in violation of the Fifth Amendment. They had asserted in their com-plaint that “the rent control law has had the effect of depriving [them] of all use and occupancy of their real property and granting to the tenants of mobilehomes presently in [t]he [p]ark, as well as the successors in interest of such tenants, the right to physically permanently occupy and use the[ir] real property.” Yee, 503 U.S. at 525 (alteration adopted) (emphasis added). In the Supreme Court, the Yees “attempt[ed] to challenge the ordinance on two additional grounds”: In particular, they argued that it constituted (1) “a denial of substantive due process” and (2) “a regulatory taking.” Id. at 532–33.
The Supreme Court’s treatment of the Yees’ new grounds is illuminating. The Court declined to consider their substantive-due-process claim because they hadn’t “raise[d] a substantive due process claim in the state courts, and no state court ha[d] addressed such a claim.” Id. at 533. The Yees neither “include[d] a due process claim in their complaint[,] [n]or did [they] raise a due process claim in the [California] Court of Appeal.” Id. “It was not until their petition for review in the California Supreme Court that [the Yees] finally raised a substantive due process claim.” Id.
But the Supreme Court saw the Yees’ regulatory-taking theory in a different light. The Court acknowledged that it was “unclear whether petitioners made this argument below: Portions of their complaint and briefing can be read either to argue a regulatory taking or to support their physical taking argument.” Id. at 534. Even so, the Court explained, the Yees’ “regulatory taking argument st[ood] in a posture different from their substantive due process claim.” Id. In particular, the Court emphasized that the Yees’ physical- and regulatory-taking theories were “not separate claims” but, “rather, separate arguments in support of a single claim—that the ordinance effects an unconstitutional taking.” Id. at 535. And because the Yees “raised a taking claim in the state courts,” they “could have formulated any argument they liked in support of that claim.” Id.
Slip op. at 12-13 (footnote omitted).
In addition to a reminder to takings mavens about the Yee takings “claim” vs takings “arguments” thing, Gould is a good reminder that on legal questions, a litigant isn’t limited to the arguments raised below. The court also made a practical caution that if a party alters their argument on appeal (here, the issue was interpretation of a term in an employment agreement, and the appellant changed his arguments about the meaning of that term), the court may conclude that, while not forfeited, this approach “sows confusion and dulls the adversarial process,” leading the court to consider the switch in argument a sign that the switcher should lose. Slip op. at 17.
Two good points to remember, advocates.
Gould v. Interface, Inc., No. 23-12882 (11th Cir. Oct. 2, 2025)