In noteworthy development for civil litigators, Supreme Court rules "purely legal" issues decided at summary judgment are preserved for appeal

The US Supreme Court’s opinion in Dupree v. Younger, No. 22-210, presents an esoteric civil procedural question that only a law professor (or appellate advocate) could love: whether a rejected motion for summary judgment argument involving a purely legal issue must be re-raised in a post-trial motion to preserve the issue for appellate review.

The practical consequences of Dupree, a seemingly niche prisoner-rights case, transcend specialty practices. Dupree is a noteworthy development for all civil litigators.

The story behind Dupree

Three correctional officers assaulted Kevin Younger when he was a pretrial detainee in Maryland state prison. Younger accused a former prison lieutenant, Neil Dupree, of ordering the attack and sued him and other prison officials under 42 U.S.C. § 1983 for violating Younger’s civil rights. During the litigation, Dupree filed a motion for summary judgment, arguing that the court should enter judgment for Dupree and against Younger because discovery had shown that Younger had not exhausted his administrative remedies as required under federal law.

The trial court rejected the exhaustion argument, denied the motion for summary judgment, and moved forward with the case. At trial, Dupree didn’t present any evidence about the rejected exhaustion issue. He also didn’t re-raise the exhaustion argument when he filed a motion asking the trial court to enter judgment as a matter of law. The jury found Dupree liable and awarded Younger $700,000 in damages.

Dupree appealed a single issue to the Fourth Circuit Court of Appeals: the trial court’s rejection of the exhaustion argument on summary judgment. The appeal was short-lived. Under Fourth Circuit precedent, arguments rejected at summary judgment are not preserved for appellate review unless those arguments are renewed in a post-trial motion. Two other circuits share this rule; the rest do not.

The Fourth Circuit’s rule finds some logic in the context of factual arguments asserted on summary judgment. For example, when a party seeks summary judgment based on an argument that there is insufficient evidence to satisfy each element of a claim, the analysis focuses on the evidence in the record that has come out in discovery at that point in the case.

That record continues to develop through trial, though, and thus an appellate court cannot later turn back time and revisit the preliminary state of the record while ignoring the fully developed version created through trial. Indeed, the Supreme Court has held that an order denying a sufficiency-of-the-evidence argument on summary judgment cannot be appealed after trial. Ortiz v. Jordan, 562 U.S. 180, 184 (2011). Instead, logic and the law dictate that the moving party should renew its factual arguments based on the full appellate record through a post-trial motion, and the appellate court can look at the issue in light of the better-developed trial record.

But the Fourth Circuit’s rule was not limited to factual arguments – it also required legal arguments to be renewed in a post-trial motion to be preserved for appellate review.

The Court’s opinion

In a unanimous opinion authored by Justice Amy Coney Barrett, the Supreme Court held that a post-trial motion under Fed. R. Civ. P. 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment. The Court acknowledged that, unlike the trial court’s factual assessments at summary judgment, the trial court’s “purely legal conclusions at summary judgment are not superseded by later developments in the litigation.”

Thus, the Supreme Court reasoned that no post-trial motion is needed to preserve the availability of appellate review because “there is no benefit to having a district court reexamine a purely legal issue after trial” – presumably because “nothing at trial will have given the district court any reason to question its prior analysis.”

Moving forward

The rule derived from Dupree – that factual arguments rejected on summary judgment need to be raised again in a post-trial motion to preserve appellate review, while “purely” legal arguments do not – raises some immediate questions. Most obviously, what is factual, and what is “purely” legal? In Dupree, the Supreme Court acknowledges the difficulty that may arise in distinguishing between the two (and indeed, the Court declined to determine whether Dupree’s exhaustion argument was purely legal or not, instead remanding that issue to the lower courts).

Given the complexities of this distinction, the safest course of action is to continue, as before Dupree, to re-raise all rejected summary judgment arguments that a party may wish to appeal through a post-trial motion. Dupree offers respite for parties who fail to do so when the issue at stake is purely legal.