Dupree Decision Blurs Lines Between Issues Of Law And Fact

• Published date: 08 September 2023
• Subject Matter: Antitrust/Competition Law, Intellectual Property, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Patent, Trials & Appeals & Compensation
• Law Firm: Axinn Veltrop & Harkrider
• Author: Francis Henry Morrison and Jarod G. Taylor

Every first-year law student has fumbled with the nuances of distinguishing between "issues of law" and "issues of fact" in Civil Procedure fact patterns.

The U.S. Supreme Court's May decision in Dupree v. Younger gives this question renewed and even greater importance for trial lawyers in federal practice to consider how to best represent clients while still ensuring the preservation of their clients' appellate rights.¹

In April, the Supreme Court heard oral argument in Dupree v. Younger, where the issue before the court was whether a post-trial Rule 50 motion is required to preserve for appeal a purely legal claim that was previously rejected at summary judgment. Previously, this question created a split of legal authority among federal courts, which the Supreme Court aimed to resolve by hearing this case.

On May 25, the court unanimously held, with Justice Amy Coney Barrett writing the opinion, that "[a] post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment" because, unlike factual issues, purely legal issues "are not 'supersede[d]' by later developments in the litigation."

In this decision, the court declined to determine whether the underlying issue raised in the case ' the "exhaustion of remedies" defense under the Prison Litigation Reform Act ' was factual or legal in nature, and vacated and remanded this question to the U.S. Court of Appeals for the Fourth Circuit to decide.

The Dupree decision openly acknowledged that in its past cases, such as Pullman-Standard v. Swint, the court "has previously noted the vexing nature of the distinction between questions of fact and questions of law."

To respond to this concern, Justice Barrett declined to adopt a bright-line rule for separating issues of law and fact, and instead raised the court's 2015 decision in Teva Pharmaceuticals USA Inc. v. Sandoz Inc., which stated that "[c]ourts of appeals have long found it possible to separate factual from legal matters."

Ultimately, the Dupree decision found that "[t]hough there will be edge cases, the experience of the majority of circuits demonstrates that the Courts of Appeals are up to the task" and noted that "prudent counsel" may be apt to renew issues on appeal in post-trial Rule 50 motions "out of an abundance of caution" to ensure that the issues are preserved for appeal.

With little guidance from the court on how to proceed, the Dupree decision has resolved one circuit split in...