In a recent opinion written by Justice Amy Coney Barrett for a unanimous Court, the Supreme Court held that there is no procedural requirement that a litigant who lost a “purely legal” issue at the summary judgment stage file a post-trial Rule 50 motion to preserve that issue for appeal. In doing so, the Court vacated and remanded the case to the U.S. Court of Appeals for the Fourth Circuit to decide whether the issue litigated and lost by the defendant on summary judgment was indeed “purely legal.”
The procedural issue presented in Dupree v. Younger (decided May 25, 2023), though technical on the surface, in fact raises a host of policy and strategic matters animating civil litigation in federal courts. Underpinning the question of whether a Rule 50 motion is necessary to preserve a legal issue previously decided on summary judgment is the curious history of Rule 50, a story that implicates the deepest concerns regarding distribution of power between judge and jury in the modern courtroom.
The Right to Jury Trial in Civil Cases in the United States
The American civil jury system has unique status in a world that largely assigns to judges or administrators the task of resolving civil disputes. Central to the American system is that juries decide contested issues of fact while judges decide legal issues. The rationale for this division of responsibility is that judges are legally trained (and therefore uniquely qualified to resolve questions of law) while jurors are laypeople (and therefore may and should be entrusted to decide issues of fact). Having laypeople involved in the civil justice system was so central to the vision of the Founders, especially the anti-Federalists, that the right to jury trial in civil cases litigated in federal court was enshrined in the Seventh Amendment.
If the function of the civil jury in federal court is well-settled, the contours of its fact-finding mission in individual cases often are far from clear. Indeed, the task of distinguishing factual issues from legal issues has implications in a number of areas of civil litigation and often can be decisive on who the ultimate decision-maker in the case will be – judge or jury. That, in turn, may determine what that ultimate determination will be.
Rule 50, which was amended in 1991 to change its nomenclature from permitting “directed verdicts” and “judgments notwithstanding the verdict” to permitting “judgments as a matter of law” (“JML”) pre-and post- jury verdict, gives the trial judge the power to determine whether a jury gets to decide the case. The judge can divest that decision-making power from the jury by a “legal” finding that no sufficient evidentiary basis exists from which a reasonable jury could find for the non-moving party.
While Rule 50 operates during and after trial, Rule 56 permits a judge to enter summary judgment before trial when there is no “genuine dispute” of “material fact” such that a party is entitled to judgment as a matter of law. Determining whether a material fact is the subject of a dispute that is “genuine,” the Court has said, parallels the Rule 50 standard for judgment as a matter of law. These standards thus meld law and fact, requiring a judge at both the summary judgment and JML stages of the litigation to determine – at least in theory – not what the facts are, but the legal question of whether the non-moving party has made a sufficient evidentiary record given that party’s burden of proof at trial. Rule 50 was controversial from its inception, prompting some members of the Supreme Court to decry its incursion into the traditional realm of the jury.
Ortiz v. Jordan & Dupree
In 2011, The Supreme Court held in Ortiz v. Jordan that an order denying summary judgment on sufficiency-of-the-evidence grounds is not appealable after a trial because the fact-finding done at trial effectively supersedes the summary judgment determination. In Dupree, the plaintiff/respondent urged the Court to extend the Ortiz ruling to situations in which the determination at the summary judgment stage was not about whether a “genuine” dispute of fact existed but instead resolved a “purely legal” issue.
The “purely legal” issue raised by the defendant state prison employees in Dupree was whether a prisoner had exhausted his administrative remedies as required by the Prison Litigation Reform Act. The district court denied the defendants’ motion, despite disagreements between the parties about whether state law had been followed, holding that the exhaustion requirement was satisfied.
After a trial that concluded with the jury awarding substantial damages to the plaintiff, the defendants opted to appeal on the sole issue of exhaustion, without having raised that issue at trial or having made it the subject of a Rule 50 motion. The Fourth Circuit denied relief to the defendants on the ground that they had not made a Rule 50 motion, putting the court at odds with other circuit courts that had held no Rule 50 motion is necessary when the issue decided by summary judgment is “purely legal.”
The Supreme Court vacated the judgment of the Fourth Circuit, siding with the other circuits, but remanded for the Fourth Circuit to evaluate whether the issue of exhaustion in the case is “purely legal.” For civil procedure professors (at least this one), the remand prompts the following question: If that determination is so obvious, why the remand?
When Is an Issue “Purely Legal”?
Because often that question is not so obvious. As is true of so much legal analysis, the level of generality at which one frames the issue matters. Here, the issue was whether an internal investigation of a prisoner’s complaint satisfied the exhaustion requirement given state law procedural requirements. The parties had argued about what exactly state law required, and the district judge concluded that the plaintiff had satisfied the requirement even in the face of the defendants’ argument that he should have pursued other procedural avenues for relief.
The outcome of the case may not be troubling here, and indeed is no doubt the right one. The Supreme Court reasoned that a trial on factual issues not encompassed by a previous summary judgment determination on a “purely legal” side issue is not relevant to that issue. Thus, requiring a perfunctory Rule 50 motion to preserve that issue for appeal would be superfluous. And the side issue in this particular case involved complicated and arguably conflicting state court procedures that might be fairly characterized as more legal than factual.
Nonetheless, it must be asked: Does this decision invite the possibility that judges in the future might elide underlying factual disputes by articulating “purely legal” issues at a higher level of generality?
Maybe. In addition to the Rule 56 summary judgment and Rule 50 JML contexts, the task of characterizing issues as “legal” rather than “factual” comes up surprisingly frequently. Other examples include decisions whether to apply issue preclusion on factual determinations made in prior litigation to later cases and the certification by federal courts of “legal” issues to state supreme courts to clarify difficult choice-of-law issues. The courts have expressed concern that divorcing legal issues from their factual contexts risks distorting those issues and can result in arbitrary declarations of law. And in all these contexts, determining what’s legal, what’s factual, and what’s a mixture of the two is an exercise in rhetorical dexterity. If I were to introduce the person standing next to me as my “spouse,” would I be making a legal claim, a factual claim, or a claim that mixes law and fact?
As with all procedural decisions, Dupree will no doubt have implications for litigant strategy in future cases. If a party has decided their chances with a jury (or perhaps a district judge) are better than with the appellate court, there is strategic advantage to characterizing issues as factual, or at least as legal but necessarily informed by the facts. Conversely, characterizing issues at a higher level of generality puts the decision-making more squarely in judges’ hands.
In Dupree, the Supreme Court defined an issue as “purely legal” if it “can be resolved without reference to any disputed facts.” Its remand requires the Fourth Circuit to use that definition to determine whether the summary judgment decision made by the district judge is appealable. This sort of exercise will, in many situations, implicate litigants’ right to jury trial and should be undertaken with that understanding.