Supreme Court to Finally Clarify Issue Preservation for Appellate Lawyers Post-Trial

By Robyn D. Kazatsky

March 8, 2023

On January 13, 2023, the United States Supreme Court granted certiorari in Dupree v. Younger, No. 22-210.  The Court is poised to finally set a nationwide rule concerning issue preservation for appeals.  More specifically, the Court will address whether in order to preserve an issue for appellate review, a party must reassert in a post-trial motion a purely legal issue rejected at summary judgment. While the Supreme Court has declined to address this very issue no fewer than ten times, a hard-line rule will at least be set by the Court, finally settling the issue for divided circuit courts and hopefully lessening the confusion and frustration of trial and appellate counsel across the nation.

After discovery concluded in Dupree, petitioner moved for summary judgment, arguing the respondent failed to exhaust all administrative remedies as required by statute.  The U.S. District Court for Maryland denied this defense on purely legal grounds, and the case proceeded to a jury trial.  After finding in favor of respondent, petitioner Dupree failed to raise the administrative exhaustion issue in any post-trial motions.  Petitioner Dupree appealed the verdict, and the U.S. Court of Appeals for the Fourth Circuit rejected his argument that raising the issue again in Rule 50(a) and 50(b) motions was required to preserve these issues.  Notably, this decision is in line with long-standing controlling Fourth Circuit precedent.  While this may be the case in the Fourth Circuit, other circuits do not necessarily follow suit. 

Trial teams must know the rule in their jurisdiction because if that jurisdiction requires a legal issue to be raised again in Rule 50 Motions and it is not, it could be waived forever.  In the U.S. Court of Appeals for the Second, Third, Sixth, Seventh, Ninth, Tenth, D.C. or Federal Circuits, legal issues raised at summary judgment do not need to be raised again via a Rule 50 Motion in order to be preserved on appeal.  In the U.S. Court of Appeals for the First, Fourth, or Fifth Circuits, legal issues raised at summary judgment must be restated in a motion for judgment as a matter of law and, if not, they are waived.  In the U.S. Court of Appeals for the Eighth Circuit, it depends on the specific issue.

Rule 50 “sets forth the procedural requirements for challenging the sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges – prior to submission of the case to the jury [via Rule 50(a)], and after the verdict and entry of judgment [via Rule 50(b)].”  Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 399 (2006).  Further, the Court “unequivocally establish[es] that the precise subject matter of a party’s Rule 50(a) motion – namely, its entitlement to judgment as a matter of law – cannot be appealed unless that motion is renewed pursuant to Rule 50(b).”  Id. at 404.  “We have repeatedly held [that] an appellate court is ‘powerless’ to review the sufficiency of the evidence after trial” absent Rule 50(a) and Rule 50(b) motions.  Ortiz v. Jordan, 131 S. Ct. 884, 892 (2011).

While few Supreme Court decisions will have tremendous impact on the everyday dealings of trial lawyers, Dupree may be the exception.  It should be on every trial and appellate lawyers’ radar, as more often than not, lawyers are thinking about issue preservation for a future appeal before the trial even begins.  But now they will have clear guidance on how these issues will or will not need to be addressed at summary judgment, in Rule 50 Motions, and, finally, at the appellate level.  It is well-known to trial and appellate lawyers that appeals can be won or lost depending upon whether a key issue was properly preserved.

Stay tuned for further updates as the attorneys at Lock Gordon Law Group will provide a status update after the Supreme Court renders a decision in Dupree v. Younger.

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