Supreme Court Justices Resolve Circuit Split in Favor of Simplified Preservation Requirements as Urged by Wells

Partner Molly Wells recently authored “Supreme Court to Resolve Circuit Split on Preservation Requirements” for the Bar Association of the Fifth Federal Circuit (BAFFC) newsletter. In the article, she analyzes the case of Dupree v. Younger, in which—at the time of writing—the Supreme Court was set to review a Fourth Circuit judgment denying the defendant-appellant’s exhaustion defense due to the appellant’s failure to comply with preservation requirements. Specifically, the Fourth Circuit—like the First and the Fifth Circuits—required a party who lost a purely legal issue via summary judgment denial to include the issue in Rule 50 motions in order to preserve the issue for appeal, which the appellant in Dupree had failed to do. Wells urged the Supreme Court to adopt the approach of the Second, Third, Sixth Seventh, Ninth, Tenth, D.C., and Federal Circuits, which all allowed review of purely legal issues that a litigant lost via summary judgment denial without the unnecessary formality of including the legal issue in Rule 50 motions. Click here to read more.

Following the article’s publication, on May 25, 2023, the Supreme Court issued its opinion holding that, “A post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment.” The ruling vacated the Fourth Circuit’s judgment to the contrary and remanded the matter to the Fourth Circuit to decide in the first instance whether the appellant’s exhaustion defense constituted such a “purely legal issue” reviewable under the Court’s ruling.

The Supreme Court’s holding in Dupree likely will have a ripple effect through related precedents. For example, the Fifth Circuit repeatedly has held that a legal issue not included in a pretrial order is waived. See, e.g., Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 206 (5th Cir. 1998). Yet, if a litigant need not make any proffer at trial related to a purely legal issue lost at summary judgement or include such an issue in any post-trial briefing to preserve the issue for appeal, it makes little sense to require a litigant to include the issue in the pretrial order. The pretrial order is intended to govern the trial, after all. Dupree calls this longstanding requirement—and, likely, others—into question and highlights the need to pay close attention to appellate issues even as one grapples with the overwhelming demands of trial.

BAFFC’s mission is to “improve and facilitate the administration of justice in the federal courts within the Fifth Circuit.” Read more about the organization here.

Molly Wells is a partner in Fishman Haygood’s Litigation Section and member of the firm’s Appellate Group. The firm handles appeals for both plaintiffs and defendants in civil litigation across many subject matters, in review of administrative proceedings, and, as part of our pro bono commitment, in immigration and post-conviction proceedings. The appellate practice at Fishman Haygood is not limited to representation before the appellate courts, but also includes advising clients and their trial counsel on litigation issues to ensure proper preservation of appellate issues at the trial court.