There’s a stubborn myth making the rounds: that if the Pentagon doesn’t like what happened in district court, it can simply march into the appellate court and unveil a fresh legal playbook.

New theories. New angles. New arguments. Whole new war plan.

That’s not how it works.

An appeal is not a retrial. It’s not a second swing at the piñata. It’s not a legal reset button.

Appellate courts review what the trial judge did with the record and arguments already in front of him. They ask two basic questions:

1. Did the judge apply the correct legal standard?

2. Did the judge abuse his discretion?

That’s it.

In Sen. Mark Kelly’s case, the judge granted a preliminary injunction. That means the appeals court will review whether he properly found that Kelly is likely to succeed on at least one claim and that irreparable harm exists.

The appellate court does not take new evidence. It does not hear new witnesses. And it generally does not entertain brand-new factual or legal theories that weren’t raised below.

Why?

Because litigation isn’t supposed to be ambush warfare. You don’t sandbag arguments in district court and then spring them later when you’re losing.

If the Pentagon argued that it has authority over retirees and that courts should defer to military personnel decisions, fine — the appeals court will examine that argument as presented.

But if it suddenly tries to say, “Actually, civilian courts have no jurisdiction over this category of cases at all,” and that theory wasn’t squarely presented to the district court, it runs into a problem: waiver.

Federal appellate courts routinely say this:
If you didn’t raise it below, you don’t get to raise it now.

There’s one narrow exception: subject-matter jurisdiction. Courts are obligated to ensure they have it, and a true jurisdictional defect can be raised at any time.

But here’s the catch — calling something “jurisdictional” doesn’t magically make it so.

There’s a difference between:

• “The court lacks constitutional or statutory authority to hear this type of case,” and

• “The court should defer to military judgment on the merits.”

One is jurisdiction.
The other is an argument about who should win.

And federal courts have exercised jurisdiction over military cases involving constitutional claims for decades. If the Pentagon wanted to argue that civilian courts categorically lack power to review alleged First Amendment retaliation against a retiree, that argument needed to be made clearly and early.

Appellate courts don’t reward late pivots.

They review the judge’s reasoning. They don’t invite legal reinvention.

So when people say, “Just wait — the Pentagon will bring up new theories on appeal,” understand this:

An appeal is not a new battlefield.
It’s a review of the one already fought.

If the government believes Judge Leon misapplied First Amendment law, misread precedent, or overstepped in granting the injunction, that’s what the appellate brief will argue.

But it won’t be a legal surprise party.

And it won’t be a constitutional escape hatch that suddenly puts civilian courts out of bounds.

That’s not how federal procedure works.
That’s not how appellate review works.
And that’s not how this case moves forward.

The next round isn’t about new ammunition.

It’s about whether the first judge got it wrong.