NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 25 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MELVIN STERNBERG; No. 10-15618
STERNBERG & SINGER LTD,
D.C. No. 2:06-cv-02115-ROS
Appellants,
v. MEMORANDUM*
LOGAN JOHNSTON,
Appellee.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Submitted July 23, 2012**
San Francisco, California
Before: HAWKINS, BERZON, and CLIFTON, Circuit Judges.
Melvin Sternberg appeals the district court’s order awarding Logan Johnston
$24,491.00 in attorneys’ fees. That award was properly before us in a previous
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
appeal, but Sternberg failed to present any arguments about it at that time or even
to ask that it be set aside. It is too late for him to do so now. We affirm.
This case is not new to us. See Sternberg v. Johnston, 595 F.3d 937 (9th Cir.
2010). Sternberg previously filed two appeals to this court regarding two separate
district court orders: an order upholding an award to Johnston by the bankruptcy
court of $92,869.20, including attorneys’ fees incurred in litigation before the
bankruptcy court (appeal no. 07–16870), and a separate order awarding Johnston
an additional $24,491 in attorneys’ fees for activity before the district court (appeal
no. 08–15721). We consolidated the appeals, vacated the $92,869.20 bankruptcy
award, and remanded for determination of the appropriate amount to award. Our
decision did not address the $24,491 award of fees for activity before the district
court.
Ordinarily, a party seeking relief from an award of attorneys’ fees is required
to file an appeal. See, e.g., Culinary & Serv. Emps. Union, AFL-CIO Local 555 v.
Haw. Emp. Ben. Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982) (“Where no
notice of appeal from a post-judgment order awarding attorneys’ fees is filed, the
court of appeals lacks jurisdiction to review the order.”). If a party appeals a fee
award, but fails to perfect the appeal, the appeal may be forfeited. See Kennedy v.
Applause, Inc., 90 F.3d 1477, 1482-83 (9th Cir. 1996) (holding that the court
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lacked jurisdiction to consider the appeal because it was filed before the final order
awarding attorneys’ fees).
Sternberg filed an appeal of the $24,491 fee award order, and, as noted
above, we consolidated that appeal with the appeal of the underlying award by the
bankruptcy court, affirmed by the district court. But even though the appeal of the
$24,491 fee award was pending before us, Sternberg did not make an argument to
reverse the district court’s $24,491 award. Sternberg only mentioned the $24,491
award once in his opening brief, in the final sentences of the “Statement of the
Case” section. He did not mention the award in the fact section of his brief, none
of Sternberg’s arguments related to the $24,491 award, and he never asked us to set
aside the award. The conclusion of Sternberg’s opening brief requested only that
this Court set aside the bankruptcy court’s award. Because Sternberg did not
present an argument opposing the $24,491 award, our opinion did not mention it.
In the adversarial system, the courts act as neutral arbitrators of issues
properly raised by parties. Greenlaw v. United States, 554 U.S. 237, 243 (2008).
“‘[Courts] do not, or should not, sally forth each day looking for wrongs to right.
We wait for cases to come to us, and when they do we normally decide only
questions presented by the parties.’” Id. at 244 (alteration in original) (quoting
United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987)). We will “‘review
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only issues which are argued specifically and distinctly in a party’s opening
brief.’” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)
(quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)). It
is the parties’ responsibility to apprise the court of all relevant issues. Issues not
argued on appeal are forfeited. Indep. Towers, 350 F.3d at 929–30. Although he
had filed an appeal from the fee award, Sternberg did not present an argument—or
even a bare request—to set aside the district court’s $24,491 award, so he forfeited
his appeal of that issue.
Sternberg’s present appeal challenges the district court’s conclusion that we
did not vacate the $24,491 award in our earlier opinion. As our opinion did not
mention that fee award, the district court was correct. We will “not consider a new
contention that could have been but was not raised on the prior appeal.” Munoz v.
Imperial Cnty., 667 F.2d 811, 817 (9th Cir. 1982); see Jimenez v. Franklin, 680
F.3d 1096, 1099–1100 (9th Cir. 2012); In re Cellular 101, Inc., 539 F.3d 1150,
1155 (9th Cir. 2008) (holding that it would be a “manipulation” of the court system
for party that had not raised all relevant issues in its first appeal to be allowed a
“second bite at the apple”). Since Sternberg could have—but did not—argue to
overturn the $24,491 award in his first appeal, he may not make this argument
now. Litigants proceed at their own risk if they leave issues lying in the weeds.
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In the interest of conserving judicial resources, we will not consider issues
that were before us but not argued in the prior appeal. Had Sternberg argued
during his first appeal that the $24,491 award should be overturned, we could have
efficiently disposed of this issue. Having neglected to present his argument as to
that award before, Sternberg now asks us to reacquaint ourselves with his case,
review our earlier opinion, and dispose of an issue which Sternberg elected not to
discuss the first time around. That is a waste of the court’s time, as well as the
time and resources of the district court and the opposing party, and we cannot
condone it.
AFFIRMED.
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