Supreme Court Wrestles With Rules to Preserve Appellate Review

The US Supreme Court appeared divided over a procedural question raised by a Maryland corrections official seeking a new trial after a jury found him liable in the assault of an inmate.

Neil Dupree argues he should be able to make a claim on appeal that the district court already denied when it refused to rule in his favor before the trial even though he failed to raise that argument again in a post-trial motion.

Dupree claimed that asking for summary judgment is enough to preserve a purely legal claim or defense for review on appeal, but several justices questioned at argument on Monday if his claim was “purely legal” or not.

“I take your point that there are some purely legal questions you might not have to renew,” said Justice Neil Gorsuch. “I just think it’s a very small class of cases that fall into that rule. “

In looking at the lower court opinions on this question, Gorsuch said most cases involve questions of fact that are intertwined and have to be presented.

“I struggle to see whether maybe we picked the right case for resolving this question,” he said. “I would have thought in an affirmative defense you would have had to raise something at trial.”

Dupree’s case is one that raises a tricky procedural question about when in the litigation process a claim has to be raised in order to be eligible later for appellate review.

Dupree’s attorney called it a “pointless gotcha rule” for the US Court of Appeals for the Fourth Circuit to require the same legal argument to be repeated at trial to ensure the issue remains live for review on appeal.

“You would never raise this at trial because the judge has already said ‘This claim is over. It’s done. I ruled on it,’” said Andrew Tutt, a senior associate at Arnold & Porter Kaye Scholer LLP.

Dupree was sued by inmate Kevin Younger for allegedly ordering three officers to attack Younger while he was asleep in his cell in 2013. A jury found Dupree and others liable for the assault and awarded Younger $700,000 in damages.

Dupree, however, argued that Younger failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act before suing him in federal court. In denying Dupree’s request for summary judgment, the district court said the administrative remedy process wasn’t available to Younger.

“As a district judge I think I would be annoyed if you tried to re-raise issues related to this exhaustion question that I had already ruled on in this way,” said Justice Ketanji Brown Jackson.

Younger’s attorney, however, argued that the district court didn’t issue a final ruling on Dupree’s claim and the only way it would have is if it had granted summary judgment in Younger’s favor.

“When a court denies a defendant’s motion for summary judgment on an affirmative defense as here, the defendant must raise his defense at trial to preserve it,” Amy Saharia, a partner at Williams & Connolly LLP, said.

Chief Justice John Roberts pushed back on her claim that a judge might change their mind when the issue is re-raised.

“I’m sure there are recorded instances of that happening but surely it’s in a distinct minority of cases and your rule adds a lot of complexity to address that small minority and I wonder if that makes sense,” he said.

Dupree v. Younger, U.S., No. 22-210, oral argument 4/24/23.