Preserving Legal Issues via Denied Summary-Judgment Motions

I’ve been following the circuit split over preserving purely legal issues via denied summary-judgment motions for some time. Now, the Supreme Court has finally resolved it. In Dupree v. Younger, the Court held that a denied summary-judgment motion preserves a purely legal issue. Litigants thus do not need to re-raise those issues in post-trial motions under Federal Rule of Civil Procedure 50.

It’s a solid resolution of the issue and removes a trap for the unwary. But going forward, counsel should be careful about whether a particular issue is purely legal. When in doubt, Rule 50 motions are probably the safest route.

The Dupree Litigation

Dupree stemmed from an incarcerated plaintiff’s suit against prison officials for abuse the plaintiff suffered at the hands of prison guards. The warden raised an exhaustion defense and moved for summary judgment. The warden argued that the plaintiff had not sufficiently exhausted administrative remedies within the prison, which would normally bar the plaintiff’s suit. But the district court rejected that defense, holding that an internal investigation in the prison system was sufficient to satisfy the exhaustion requirement.

The case proceeded to trial, at which the warden did not raise his exhaustion defense. Nor did he raise it in a mid-trial motion under Federal Rule of Civil Procedure 50(a). And after the jury returned a verdict for the plaintiff, the warden did not even file a Rule 50(b) motion.

He instead appealed, raising only the exhaustion defense. But the Fourth Circuit held that the warden had failed to preserve the exhaustion issue for appeal. Although he raised it in his denied motion for summary judgment, he did not raise it again after trial via Rule 50. And a Rule 50 motion was necessary to preserve the issue. The Fourth Circuit accordingly dismissed the appeal.

The Split on Preserving “Purely Legal” Issues via Denied Summary-Judgment Motions

The Supreme Court granted cert in Dupree to resolve a split over what is necessary to preserve a purely legal issue for appeal.

A Note on Wording

As I often do when discussing this issue, let’s start with some wording. The issue in Dupree is sometimes presented (including in some of the Dupree briefing) in terms of “appealing” a summary-judgment denial—i.e., can a party appeal a summary judgment denial after a trial on the merits? That’s not an accurate framing. No one is debating whether the denial of summary judgment is immediately appealable (it normally isn’t) or whether the losing party can appeal after a final judgment (they normally can). The real issue is whether, on appeal, the losing party can raise issues that it addressed only in the denied summary-judgment motion.

So the issue is really one of preservation for appeal: does the denied summary-judgment motion preserve an issue raised in that motion. Using that term is more accurate and avoids any distractions from interlocutory appeals

Ortiz

The split stems from the Supreme Court’s decision in Ortiz v. Joradn. In Ortiz, the Court held that a denied summary-judgment motion does not preserve an evidence-sufficiency challenge after a trial on the merits. When making this evidence-sufficiency argument, a party contends that the summary-judgment record contains insufficient evidence for the non-moving party to prevail. But once a case proceeds to trial, the trial record supersedes the summary-judgment record. At that point, any issues about the sufficiency of the summary-judgment record are moot. If a party still wants to argue evidence sufficiency after a trial, the question is whether the trial record requires judgment as a matter of law. And that issue is raised—and preserved for appeal—via motions under Federal Rule of Civil Procedure 50.

So Ortiz rightly held that a denied summary-judgment motion does not preserve a challenge to the sufficiency of the evidence presented at trial. The opinion occasionally spoke in terms of appealing the summary-judgment denial, which wasn’t entirely accurate. Perhaps the Court did so because Ortiz arose in one of the rare circumstances in which a denial of summary judgment is immediately appealable: the denial of qualified immunity. But the holding is straightforward: a denied summary-judgment motion is not enough to preserve an evidence-sufficiency issue after a full trial.

The Split

Ortiz left open the possibility that summary-judgment denials could preserve purely legal issue. The courts of appeals eventually split on this issue. Several courts of appeals held that denied summary-judgment motions were sufficient. But others held that they weren’t, and parties must re-raise those legal issues via objections to the jury instructions or a Rule 50 motion.

Dupree

In Dupree, the Supreme Court held that a Rule 50 motion is not necessary to preserve a purely legal issue that was raised and resolved at summary judgment. The Court explained that although “[t]rials wholly supplant pretrial factual rulings,” “they leave pretrial legal rulings undisturbed.” So trial does not supersede decisions on purely legal issues made at summary judgment. And there is no need to have a district court reexamine a purely legal issue. Nothing that happened at trial could have affected that decision.

Responding to the plaintiff’s arguments, the Court also also noted that the issue not about “appealing” summary-judgment denials. To be sure 28 U.S.C. § 1291 normally delays appeal until the end of district court proceedings. “But § 1291 does not insulate interlocutory orders from appellate scrutiny . . . .”

A Good Resolution & a Note of Caution

This is a good resolution to the split. Once the issue is framed as one of preservation, there is no reason to require a Rule 50 motion to preserve a purely legal issue. Rules of preservation exist to give the district court and the opposing party notice of an argument and the chance to address that argument when the record is still open. They also prevent aggrieved litigants from quietly amassing potential grounds for reversal, raising them only after losing.

So once a party unsuccessfully argues a legal point in the district court, everyone has notice of the issue, a chance to respond to it, and (for the court) a chance to resolve it. What, then, is the point of forcing that party to re-raise the issue at some later point?

The only trick here is going to be identifying “purely legal” issues. As the Court acknowledged, that’s not always straightforward. And the Court ultimately remanded the case to the Fourth Circuit to determine whether the issue in Dupree was purely legal.

Going forward, if there is any doubt over whether an issue is “purely legal,” counsel would be wise to re-raise the issue in Rule 50 motions.

Dupree v. Younger, 2023 WL 3632755 (May 25, 2023), available at the Supreme Court of the United States and Westlaw