Federal appellate practitioners are readily familiar with the principle that a district court’s order denying summary judgment is generally not immediately appealable. Instead, an appeal regarding the summary judgment denial must wait until a final judgment has been rendered.  This most often occurs after trial.

But if the parties proceed to trial, to what extent is the defendant who lost the summary judgment motion responsible for re-raising arguments they lost at summary judgment prior to the appeal?

In Ortiz v. Jordan, the U.S. Supreme Court held that where a party’s motion for summary judgment is denied on “sufficiency-of-the-evidence” grounds, that party must re-raise such a defense in a post-trial motion in order for it to be preserved for purposes of an appeal.

But what if the party lost the summary judgment motion on an issue that does not depend on the sufficiency of evidence, for example, on a purely legal question? Must the losing party re-raise the same argument in a post-trial motion or else abandon the argument in any appeal? Or can the party forego renewing the argument before the district court and raise it again on appeal?

In June, the Supreme Court considered the issue and held a party is not required to re-raise an argument lost at summary judgment in a post-trial motion where the argument raises purely legal issues on undisputed facts. Dupree v. Younger, 143 S. Ct. 1382, 1390-91 (2023).

In Dupree, the plaintiff, Younger, a detainee at a Maryland state prison, sued the defendants, three corrections officers, alleging that the officers assaulted him and used excessive force in violation of 42 U.S.C. Section 1983 and his Fourteenth Amendment due process rights. One of the defendants, Dupree, moved for summary judgment by arguing that Younger failed to exhaust his administrative remedies, which barred his claims. The district court denied the motion, finding there was “no dispute” that the Maryland prison investigated the assault, and thus Younger satisfied his exhaustion obligation.

The case proceeded to trial, where Dupree did not present any evidence regarding his exhaustion defense. The jury rendered a verdict in favor of Younger, awarding him $700,000 in damages. Dupree did not re-raise the argument in a post-trial motion under Federal Rule of Civil Procedure 50(b).

Dupree appealed to the Fourth Circuit Court of Appeals, and argued that the district court erred in rejecting his exhaustion defense at summary judgment. The Fourth Circuit, applying its then-existing precedent, concluded it could not consider Dupree’s argument regarding Younger’s exhaustion because Dupree failed to preserve the argument by not re-raising it in a post-trial motion under Rule 50(b). The fact Dupree had argued it in his summary judgment motion did not preserve the issue for appeal.

The Supreme Court granted certiorari, and reversed the Fourth Circuit’s opinion holding that its precedent in Ortiz does not extend to arguments that raise purely legal issues. Ortiz, in contrast to Dupree’s case, involved a claim regarding sufficiency of the evidence. Such a contention necessarily evolves after a trial because the factual record at trial “supersedes the record existing at the time of the summary-judgment motion.” Ortiz, 131 S. Ct. at 178. Thus, it naturally follows that a party must re-raise their sufficiency-of-the-evidence contention after trial because the district court has the right to consider the issue in the first instance before an appellate court.

But where a party’s argument is purely legal, and raises no disputed issues of fact, the Ortiz rationale shouldn’t apply. If the argument is purely legal and does not turn on facts, presumably the issue is the same as the one already decided by the district court at summary judgment. Therefore, it follows a party need not re-raise such an argument following trial. What is the takeaway from Dupree for appellate practitioners? When evaluating potential legal errors for a party who lost at trial, it is important to assess all arguments the party made and lost, including those rejected at the summary judgment phase that were not renewed at trial. There may have been strategic or tactical reasons why the party did not re-raise the argument in a post-trial motion. Therefore, if one can argue the losing argument at summary judgment was purely legal, the issue would be preserved for appeal, and could provide an opening to argue reversible error.