an issue. (D.I. 257 at 10 (quoting Skretvedt, 372 F.3d at 203)) But to characterize the Department’s appellate briefs as merely making passing reference to the tort issue misses the point. As already explained, given the dependence of the tort claim on the contract claim, and given the parties’ and this Court’s understanding of that dependence, the briefing addressing the Employees’ contractual rights was addressed to the tort claim just as much as it was addressed to the contract claim. That Cir.1990) (finding waiver of “new theory” appellant articulated for first time on appeal and had not previously referenced at any point in the “voluminous record of proceedings before the district court” or in earlier appeal); Cowgill v. Raymark Indus., Inc., 832 F.2d 798, 803-04 (3d Cir.1987) (<HOLDING>); Wisniewski v. Johns-Manville Corp., 812 F.2d
holding that alternate theory of relief cannot be litigated on remand if it was not raised in prior appeal holding that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant holding that the defendant may not state one ground at trial and another on appeal holding that a litigant must support an argument with legal authority holding litigant may not pursue on appeal a new theory fundamentally at odds with her prior position