Where the right to appeal a trial court judgment is provided by statute, "that appeal must accord with due process." Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990). This case presents an ideal opportunity for the Court to provide much-needed guidance with respect to the following important questions:

1. Whether the right to due process on appeal is violated where an appellate court invokes and relies on a legal argument that was not presented by an opposing party or otherwise mentioned prior to the issuance of the court's decision.

2. Whether the right to due process on appeal is violated where an appellate court declines to acknowledge presented arguments, binding authorities, or material facts.

3. Whether a prophylactic rule of procedure, imposed pursuant to this Court's supervisory authority, is warranted to deter federal courts of appeals from crafting decisions based on arguments, authorities, and material facts that differ from those presented in the parties' briefs.

Whether the right to due process on appeal is violated where an appellate court invokes legal arguments not presented by parties or declines to acknowledge presented arguments and binding authorities