The failure to apply the regulations rendered the Department's decision arbitrary and capricious. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002) (concluding that an administrative law judge's action was unsupported because the judge hadn't discussed the critical regulations); Chicano Educ. and Manpower Servs. v. Dep't of Labor, 909 F.2d 1320, 1327 (9th Cir. 1990) (stating that agencies must follow and discuss their own regulations).
A party who fails to assert a waiver argument forfeits—and therefore implicitly waives—that argument. Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir.2010); see also Tokatly v. Ashcroft, 371 F.3d 613, 618 (9th Cir.2004) (holding that an implicit waiver occurred when the party failed to “argue waiver [and] instead elected to address the issue on the merits”); Chicano Educ. & Manpower Servs. v. U.S. Dep't of Labor, 909 F.2d 1320, 1328 & n.5 (9th Cir.1990) (holding that waiver was forfeited when “the Department [did not] make the waiver argument to the Secretary”). Scott has neither waived nor forfeited his waiver argument.
Norwood waived the defendants' waiver by addressing the claim on the merits without also making a waiver argument. Cf. Chicano Educ. & Manpower Servs. v. U.S. Dep't of Labor, 909 F.2d 1320, 1327-28 & n. 5 (9th Cir.1990) ("Yes, we are indeed holding that the Department has waived its right to argue that CEMS waived its right to ask for a waiver. ...").
Norwood waived the defendants' waiver by addressing the `claim on the merits without also making a waiver argument. Cf. Chicano Educ. Manpower Servs. v. U.S. Dep't of Labor, 909 F.2d 1320, 1327-28 n. 5 (9th Cir. 1990) ("Yes, we are indeed holding that the Department has waived its right to argue that CEMS waived its right to ask for a waiver. . . . "). The dissent would have us raise the issue of waiver sua sponte and suggests that we have "discretion" not to reach defendants' qualified immunity claim. Dissent at 1076-77.
The primary difficulty with UNLV's argument is that Torres did not announce a general rule of appellate procedure; it was interpreting a specific rule of procedure. See Chicano Educ. Manpower Serv. v. Dept. of Labor, 909 F.2d 1320, 1329 (9th Cir. 1990). That rule, FRAP 3(c), places certain requirements on parties bringing an appeal.