Opposition Brief — Neil Dupree, Petitioner v. Kevin Younger

No. 22-210

In the Supreme Court of the United States

NEIL DUPREE, PETITIONER,

v.

KEVIN YOUNGER,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

ALLEN E. HONICK

DUSTIN FURMAN

FURMAN HONICK LAW

11155 Red Run Blvd.

Suite 110

Owings Mills, MD 21117

(410)844-6000

DAVID DANEMAN

WHITEFORD, TAYLOR &

PRESTON, LLP

7 St. Paul Street

Baltimore, MD 21202

(410) 347-8729

AMY MASON SAHARIA

Counsel of Record

CHARLES L. MCCLOUD

MARY E. GOETZ

JACOB L. BURNETT*

WILLIAMS & CONNOLLY LLP

680 Maine Avenue SW

Washington, DC 20024

(202) 434-5000

asaharia@wc.com

Counsel for Respondent

*Admitted in Indiana. Practice in the District of Columbia supervised by members of the D.C. Bar as required by D.C. App. R.

49(c)(8).

QUESTION PRESENTED

Whether to preserve the issue for appellate review a

party must reassert in a post-trial motion a purely legal

issue rejected at summary judgment.

(I)

II

TABLE OF CONTENTS

Page

INTRODUCTION .................................................................... 1

STATEMENT ............................................................................ 2

Factual Background ................................................ 2

Proceedings Below ................................................... 3

REASONS FOR DENYING THE PETITION ............... 7

I. The Decision Below is Correct ......................................... 8

II. The Question Presented Does Not Warrant This

Court’s Review ................................................................... 12

Any Differences in Approach Across the Circuits

Poses No Obstacle for Parties Litigating in the

Federal Courts ....................................................... 13

The Question Presented Is Rarely Outcome

Determinative ......................................................... 14

III.This Case Is a Poor Vehicle for Addressing the

Question Presented ........................................................... 17

The Question Presented Is Not Outcome

Determinative in This Case .................................. 17

The New Underlying Issue Is Easily Resolved

for Respondent ....................................................... 19

CONCLUSION ........................................................................ 21

III

TABLE OF AUTHORITIES

Page

Cases:

Ayers v. City of Cleveland,

773 F.3d 161 (6th Cir. 2014) .................................... 15

Banuelos v. Constr. Laborers’ Tr. Funds for S.

Cal., 382 F.3d 897 (9th Cir. 2004) ........................... 12

Black v. J.I. Case Co.,

22 F.3d 568 (5th Cir. 1994)................................ 10, 12

Brightwell v. Hershberger,

No. 10-cv-3278, 2016 WL 4537766

(D. Md. Aug. 31, 2016) ............................................... 5

Brightwell v. Hershberger,

No. 11-cv-3278, 2016 WL 5815882

(D. Md. Oct. 5, 2016) ................................................ 19

Buie v. Dhillon,

No. 19-5105, 2020 WL 873502

(D.C. Cir. Feb. 14, 2020) ......................................... 16

Caluori v. One World Techs., Inc.,

555 F. App’x 995 (Fed. Cir. 2014) .......................... 12

Chemetall GMBH v. ZR Energy, Inc.,

320 F.3d 714 (7th Cir. 2003) .............................. 11, 14

Chesapeake Paper Prods. Co. v. Stone &

Webster Eng’g Corp.,

51 F.3d 1229 (4th Cir. 1995) ................................ 6, 14

Copar Pumice Co. v. Morris,

639 F.3d 1025 (10th Cir. 2011) ................................ 15

Creative Cookware, Inc. v. Northland

Aluminum Prods., Inc.,

678 F.2d 746 (8th Cir. 1982) .................................... 13

Eon Corp. IP Holdings LLC v. Silver Spring

Networks, Inc.,

815 F.3d 1314 (Fed. Cir. 2016) ............................... 12

IV

Page

Cases—continued:

Ericsson Inc. v. TCL Commc’n Tech. Holdings

Ltd., 955 F.3d 1317 (Fed. Cir. 2020) ...................... 12

F.B.T. Prods., LLC v. Aftermath Recs.,

621 F.3d 958 (9th Cir. 2010) .................................... 12

FDIC v. AmTrust Fin. Corp.,

694 F.3d 741 (6th Cir. 2012) ................................ 7, 10

Feld v. Feld,

688 F.3d 779 (D.C. Cir. 2012) ........................... 11, 14

Ferguson v. Waid,

798 F. App’x 986 (9th Cir. 2020) ............................. 16

Frank C. Pollara Grp., LLC v. Ocean View

Inv. Holding, LLC,

784 F.3d 177 (3d Cir. 2015) ..................................... 15

Gerics v. Trevino, 974 F.3d 798 (6th Cir. 2020) .......... 16

Glaros v. H.H. Robertson Co.,

797 F.2d 1564 (Fed. Cir. 1986) ............................... 13

Gulf Eng’g Co., L.L.C. v. Dow Chem. Co.,

961 F.3d 763 (5th Cir. 2020) .............................. 15, 16

Haas v. Fancher,

802 F. App’x 538 (11th Cir. 2020) ........................... 16

Hanover Am. Ins. Co. v. Tattooed Millionaire

Ent., LLC, 974 F.3d 767 (6th Cir. 2020) .... 14, 15, 16

Hernandez v. Fitzgerald,

840 F. App’x 333 (10th Cir. 2020) ........................... 16

Hisert on Behalf of H2H Assocs., LLC v.

Haschen, 980 F.3d 6 (1st Cir. 2020) ....................... 15

Hurt v. Com. Energy, Inc.,

973 F.3d 509 (6th Cir. 2020) .................................... 16

In re Bard IVC Filters Prod. Liab. Litig.,

969 F.3d 1067 (9th Cir. 2020) .................................. 16

Jones ex rel. United States v. Mass. Gen.

Hosp., 780 F.3d 479 (1st Cir. 2015) ........................ 15

V

Page

Cases—continued:

Kidis v. Reid, 976 F.3d 708 (6th Cir. 2020) ................. 16

Lawson v. Sun Microsystems, Inc.,

791 F.3d 754 (7th Cir. 2015) .................................... 12

Michael Found., Inc. v. Urantia Found.,

61 F. App’x 538 (10th Cir. 2003) ............................. 12

Mitchell v. Forsyth, 472 U.S. 511 (1985) ..................... 10

Murray v. Amalgamated Transit Union,

719 F. App’x 5 (D.C. Cir. 2018) .............................. 15

Ortiz v. Jordan, 562 U.S. 180 (2011) .............. 1, 9, 10, 16

Pullman-Standard v. Swint,

456 U.S. 273 (1982) .................................................. 11

Rekhi v. Wildwood Indus., Inc.,

61 F.3d 1313 (7th Cir. 1995) .................................... 11

Ross v. Blake, 578 U.S. 632 (2016) ....................... 4, 5, 19

Ruyle v. Cont’l Oil Co.,

44 F.3d 837 (10th Cir. 1994) .................................... 13

Sooroojballie v. Port Auth. of N.Y. & N.J.,

816 F. App’x 536 (2d Cir. 2020) .............................. 16

TVT Recs. v. Island Def Jam Music Grp.,

412 F.3d 82 (2d Cir. 2005) ....................................... 12

U.S. Fid. & Guar. Co. v. Lee Invs. LLC,

641 F.3d 1126 (9th Cir. 2011) .................................. 12

Unitherm Food Sys., Inc. v. Swift-Eckrich,

Inc., 546 U.S. 394 (2006) ..................................... 9, 12

Universal Truckload, Inc. v. Dalton Logistics,

Inc., 946 F.3d 689 (5th Cir. 2020) ........................... 16

Varghese v. Honeywell Int’l,

424 F.3d 411 (4th Cir. 2005) ...................................... 7

Watley v. Felsman,

839 F. App’x 728 (3d Cir. 2020) .............................. 16

Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018) ....... 15

VI

Page

Statutes, Regulations, and Rules:

28 U.S.C.

§ 1291 .................................................................... 9, 10

§ 1292 .............................................................. 9, 10, 11

42 U.S.C. § 1983 ............................................................... 3

Prisoner Litigation Reform Act,

42 U.S.C. § 1997e ............................................... 3, 4, 6

Md. Code Ann., Corr. Servs. § 2-201 ........................... 20

Md. Code. Regs. 12.11.01.08 (2013) ............................. 20

Federal Rules of Civil Procedure

50 ...................................................................... passim

56 ............................................................................. 8, 9

Other Authority:

Kelli Benham Bills, Rule 50 and Purely Legal

Arguments: A Circuit Split, ABA (June 27, 2013),

https://tinyurl.com/bdfjxdp8................................... 13

In the Supreme Court of the United States

NO. 22-210

NEIL DUPREE, PETITIONER,

v.

KEVIN YOUNGER,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

INTRODUCTION

Petitioner asks this Court to address a question on

which it has repeatedly denied certiorari without any

noted dissent. There is no good reason for changing

course in this case.

The court of appeals correctly refused to excuse petitioner’s error in failing to renew in his post-trial briefing

the exhaustion argument he made at summary judgment.

Petitioner’s argument for a contrary rule finds no support

in the text of the relevant provisions, all of which make

clear that orders denying a summary judgment motion

“do not qualify as ‘final decisions’ subject to appeal.” Ortiz

v. Jordan, 562 U.S. 180, 188 (2011). Petitioner’s position

(1)

2

also depends on an artificial distinction between factual

and legal issues. As the lower courts have repeatedly

acknowledged, that distinction is exceedingly difficult to

apply in practice.

Petitioner also overstates the importance of the issue

he seeks to raise. It arises infrequently and rarely makes

a difference when it does arise. And while petitioner complains of the unfairness of the Fourth Circuit’s approach,

he could easily have avoided any issue by following that

court’s long-established precedents—precedents his

counsel was concededly aware of and simply ignored.

This petition would be an especially unsuitable vehicle

for addressing the question presented in any event. Petitioner contends that the court of appeals erred in refusing

to review an issue the district court resolved against him.

But a closer inspection of the record below suggests that

the district court never resolved the precise legal argument petitioner tried to make on appeal. The resolution

of the question presented is thus irrelevant to the disposition of his appeal.

The Court should deny the petition.

STATEMENT

Factual Background

On September 30, 2013, petitioner Dupree directed

three prison guards to attack respondent Younger, a pretrial detainee at the Maryland Reception, Diagnostic &

Classification Center. Pet.App.3a. The guards entered

Younger’s cell while he was sleeping and threw him from

the top bunk onto the concrete floor. Pet.App.3a, 55a.

They bludgeoned him using a mace can, radios, and handcuffs, and then proceeded to slam Younger’s head against

the concrete floor and the toilet. Pet.App.12a, 55a. The

guards left, and Younger lay unconscious in a pool of his

3

blood for an hour before a medical unit arrived.

Pet.App.12a. The guards ordered Younger to report that

he had sustained his injuries by falling off his bed.

Pet.App.12a.

Although Younger was bedridden for weeks after the

attack, he was not taken to a hospital for his head and leg

injuries for “[s]everal months.” Pet.App.3a, 12a. Younger

suffered from headaches and anxiety for months after the

attack. Pet.App.12a. He also sustained permanent injuries to his face, wrists, ribs, and right hand. Pet.App.12a.

Even after spending months in the hospital, Younger had

to undergo surgery years later to repair his leg muscle.

Pet.App.12a.

The three guards who attacked Younger were ultimately convicted for their crimes. Pet.App.12a-13a.

Proceedings Below

1. On September 28, 2016, Younger filed the present

suit against the guards as well as three correction officials, including petitioner. Pet.App.3a, 13a. Younger

alleged constitutional violations under 42 U.S.C. § 1983.

Pet.App.3a. He also brought claims against the State of

Maryland, which he ultimately pursued and won in state

court. Pet.App.13a.

Petitioner filed two motions to dismiss, both of which

the district court rejected. Pet.App.57a, 86a. Petitioner

also filed a motion for summary judgment, raising, among

other issues, an argument that Younger had failed to exhaust his administrative remedies under the Prisoner

Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.

Pet.App.36a. Petitioner contended that Younger “did not

complete the necessary steps within the administrative

process” and that such process was available to him.

Memorandum in Support of Defendant Dupree’s Motion

for Summary Judgment at 10, 11-16, Younger v. Green,

4

No. 16-cv-3269 (D. Md. Nov. 18, 2019), ECF No. 186-1

(hereinafter Dupree MSJ).

The district court denied Younger’s motion. The

court began by explaining the two avenues for relief then

available to aggrieved Maryland inmates: (1) the administrative remedy procedure (ARP), in which an inmate

takes his complaint up through three levels of review, ending with the Inmate Grievance Office; and (2) the Internal

Investigative Unit (IIU), which investigates allegations of

employee misconduct. Pet.App.38a-40a. 1 When an IIU

inquiry begins, the court noted, Maryland regulations “direct the warden to dismiss [an ARP] grievance if it shares

the ‘same basis’ as a pending IIU investigation,” and to

state in the dismissal that no further action would be

taken in the ARP case because of the existence of an IIU

investigation. Pet.App.40a (citation omitted).

In analyzing petitioner’s PLRA claim, the court recounted the rule from Ross v. Blake, 578 U.S. 632 (2016),

that a prisoner must exhaust only “available’ remedies”—

that is, remedies “capable of use to obtain some relief for

the action complained of.” Pet.App.38a (quoting Ross, 578

U.S. at 642). The parties’ dispute here, the district court

explained, was whether the “administrative remedy procedure (‘ARP’) is ‘available’ upon the initiation of a

parallel investigation by the Internal Investigative Unit.”

Pet.App.38a. The district court held that it was not: “the

IIU investigation satisfied [Younger’s] obligation to subject his claims to administrative exhaustion.”

Pet.App.42a.

In reaching that conclusion, the district court noted

that Ross had commented on the confusing relationship

The relevant regulations have since been amended, but those

changes are not relevant to this appeal.

1

5

between the ARP and IIU, and had remanded for consideration of, among other things, whether the ARP process

was “available” to a prisoner once an IIU inquiry had been

initiated. Pet.App.40a. Indeed, Ross instructed the lower

court to consider whether “the IIU investigation into [an]

assault foreclose[d]” the “standard grievance procedures”

(i.e., the ARP). 578 U.S. at 648. Since Ross, the district

court observed, courts in the District of Maryland had “repeatedly held that the availability of the IIU process

‘closes the door’ to the ARP process” and thus that the

ARP process “is rendered unavailable upon the commencement of an [IIU] investigation.” Pet.App.40a-41a

(quoting Brightwell v. Hershberger, No. 10-cv-3278, 2016

WL 4537766, at *5 (D. Md. Aug. 31, 2016)).

Consistent with this authority, the district court rejected petitioner’s argument that the possibility an inmate

could persist in the ARP process during an IIU inquiry

made the ARP process available. Pet.App.41a. Given this

conclusion, the court reasoned that there was no need to

“resolve disputes concerning Younger’s adherence to the

ARP process because the IIU investigation satisfied his

obligation to subject his claims to administrative exhaustion.” Pet.App.42a.

2. Younger’s case proceeded to a jury trial on January 21, 2020. Pet.App.10a. At the close of evidence, one

of petitioner’s co-defendants moved for judgment as a

matter of law pursuant to Federal Rule of Civil Procedure

50(a), but petitioner did not. See Pet.App.10a-11a. On

February 3, 2020, the jury returned a verdict in favor of

Younger in the amount of $700,000. Pet.App.11a.

One of petitioner’s co-defendants moved for judgment notwithstanding the verdict under Rule 50(b),

reasserting a legal argument he had made at summary

judgment and again at trial. Pet.App.11a, 23a. Petitioner,

by contrast, neither reasserted the exhaustion argument

6

he had made at summary judgment nor raised any objections to the district court’s reasoning in rejecting that

argument. Petitioner did move for remittitur, which the

district court denied, finding the $700,000 award compatible with the trial evidence of the “brutal attack” on

Younger, the severe injuries he sustained, and Younger’s

testimony that he “lives in persistent fear of being attacked” such that he “pushes a heavy dresser in front of

his bedroom door” every night. Pet.App.25a-26a. The

court further found that the jury award was consistent

with other compensatory damages awards in excessive

force cases in the District of Maryland. Pet.App.26a-27a.

3. Petitioner appealed the case to the Fourth Circuit.

He did not raise any evidentiary arguments or challenge

the district court’s determination that the $700,000 award

was appropriate. See Pet.App.2a. Instead, he raised a

seemingly new PLRA exhaustion argument from the one

he had made at summary judgment. Petitioner now conceded that “the district court correctly determined that an

IIU investigation ‘closes the door to the ARP’” but argued

that the third step of the ARP—review by the Inmate

Grievance Office, Pet.App.38a-39a—constituted a separate, independently required stage of the exhaustion

process that inmates must fulfill even if the incident is the

subject of an IIU inquiry. Brief of Appellant at 14-15,

Younger v. Dupree, No. 21-6423 (4th Cir. Aug. 25, 2021).

Petitioner also renewed a factual argument that the ARP

was “available” to Younger because another inmate had

been able to use it to obtain some relief. Id. at 17.

A unanimous panel of the Fourth Circuit dismissed

petitioner’s appeal. Pet.App.2a-3a. Petitioner could not,

the panel explained, raise on appeal an issue he had not

raised in a Rule 50 motion before the district court.

Pet.App.5a (citing Chesapeake Paper Prods. Co. v. Stone

& Webster Eng’g Corp., 51 F.3d 1229, 1237 (4th Cir.

7

1995)). The case fell squarely within Fourth Circuit precedent precluding review in such circumstances.

Pet.App.5a. Petitioner’s contrary arguments “simply

track[ed] the views expressed” in a dissenting opinion to

Varghese v. Honeywell International, 424 F.3d 411, 423

(4th Cir. 2005). Pet.App.7a-8a. The panel thus concluded

that the exhaustion issue was not properly before it, and

dismissed petitioner’s appeal. Pet.App.8a-9a.

4. Petitioner petitioned for rehearing en banc, which

the Fourth Circuit denied without noted dissent on April

8, 2022. Pet.App.111a. Petitioner then filed the present

petition for certiorari on September 6, 2022.

REASONS FOR DENYING THE PETITION

The Fourth Circuit correctly held that petitioner

failed to preserve his argument regarding exhaustion for

appeal. The Federal Rules of Civil Procedure and the

U.S. Code provide a sensical scheme for parties to preserve issues lost at summary judgment for appeal. Put

simply, the federal rules allow parties to raise arguments

lost at summary judgment on appeal via motions under

Rule 50(a) and 50(b). All litigants have to do in their Rule

50 motions to preserve arguments for appeal is include a

sentence or two incorporating arguments lost at summary

judgment.

Some courts have created an atextual exception to

this straightforward practice, providing for appellate jurisdiction over arguments denied at summary judgment

(and not raised in Rule 50 motions) if they concern a “pure

question of law.” E.g., FDIC v. AmTrust Fin. Corp., 694

F.3d 741, 751 (6th Cir. 2012). These courts do not find solace in the relevant rules’ text. Instead, they support their

position in the name of policy. However, policy concerns

do not greenlight Article III courts’ efforts to rewrite Article I’s clear textual guidance.

8

In the face of the Fourth Circuit’s clear rule, petitioner argues that “the question presented raises legal

and practical issues of surpassing importance.” Pet. 3. He

grossly overstates the importance of the question presented. Indeed, this Court has denied certiorari at least

ten times to address it. And because competent lawyering

easily avoids putting litigants within the reach of the question presented, it rarely affects the outcomes of cases.

The potential resolution of this case presents that reality: The Court’s decision on the question presented

would not impact this case because the argument petitioner raised before the Fourth Circuit appears not to be

the “issue rejected at summary judgment.” Pet. i. And

even if the Fourth Circuit reached the new argument petitioner raises, it would have no trouble recognizing it as

meritless. As such, this is a poor vehicle for the Court to

address the question presented.

At bottom, petitioner asks this Court to save him from

a mistake of his own creation—failing to follow precedent

of which he was aware. The Court should deny that invitation.

I.

The Decision Below is Correct

The U.S. Code and Federal Rules of Civil Procedure

set forth a logical sequence by which litigants can preserve issues for appeal. There is no basis for creating an

atextual, policy-driven exception to that system.

1. The United States Code and Federal Rules of Civil

Procedure set out a carefully calibrated scheme for judicial consideration of parties’ arguments before, during,

and after trial.

Before trial, a party “may move for summary judgment, identifying each claim or defense . . . on which

summary judgment is sought.” Fed. R. Civ. P. 56(a). Rule

9

56 imposes just one requirement on a district court considering a summary judgment motion: the court must

grant summary judgment “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.

During trial, parties may move for judgment at any

time before the case is submitted to the jury: Rule 50(a)

permits the court to grant motions for judgment as a matter of law when “a reasonable jury would not have a

legally sufficient evidentiary basis to find for the [moving]

party on that issue.” Id. R. 50(a).

After trial, a party may renew its motion for judgment as a matter of law, and may also move for a new trial.

Id. R. 50(b). If the district court denies the party’s Rule

50 motions, the denial creates a final judgment subject to

immediate appellate review. Unitherm Food Sys., Inc. v.

Swift-Eckrich, Inc., 546 U.S. 394, 401 (2006). An appellate

court thus may review that decision and “order a new

trial, direct the trial court to determine whether a new

trial should be granted, or direct the entry of judgment.”

Fed. R. Civ. P. 50(e).

Not every decision that a district court makes during

the life of a case is immediately appealable. Congress has

reserved appellate jurisdiction for review of “final decisions of the district courts of the United States,” 28 U.S.C.

§ 1291, and of interlocutory decisions under limited circumstances, id. § 1292.

Orders denying summary

judgment are quintessential interlocutory orders, not

normally appealable after trial. Ortiz, 562 U.S. at 183-84.

This is because a decision denying summary judgment is

“simply a step along the route to final judgment.” Id. at

184. Issues rejected at summary judgment can become

appealable, however, if raised in a Rule 50 motion. See

Fed. R. Civ. P. 50(e).

10

Under this orderly scheme, parties can easily raise

arguments lost at summary judgment on appeal via motions under Rule 50(a) and 50(b). “If such motions are

properly made, the denied motion for summary judgment

need not be reviewed, because the . . . issues determined

by the district court are freely reviewable, and the case

may be reversed and rendered on that basis.” Black v.

J.I. Case Co., 22 F.3d 568, 571 n.5 (5th Cir. 1994). Rule 50

motions are the expected and simple way for parties to

preserve issues for appeal. See also infra pp. 13-14.

2. In the face of this sensical scheme, some courts

have grafted an atextual exception into the Rules, providing for appellate jurisdiction over arguments denied at

summary judgment (and not raised in Rule 50 motions) if

they concern a “pure question of law.” E.g., AmTrust Fin.

Corp., 694 F.3d at 751. This position finds no support in

the text of the relevant statute or rules, and it undermines

the careful system Congress has established for appellate

review.

Start with the text of the relevant provisions: Appellate courts have jurisdiction over only “final decisions of

the district courts.” 28 U.S.C. § 1291. Section 1292, in

turn, sharply limits the non-final, interlocutory decisions

that can be raised on appeal—and those decisions are appealed immediately after they are made, not at the close

of the district court proceedings. Id. § 1292(b) (directing

district courts to certify interlocutory orders for appellate

review within ten days of their entry). Summary judgment denials “do not qualify as ‘final decisions’ subject to

appeal.” Ortiz, 562 U.S. at 188. Only one limited category

of summary judgment denials—those denying some form

of immunity—may be appealed immediately—that is, before trial. Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985);

Ortiz, 562 U.S. at 188. All other summary judgment denials are non-final, and the legal issues they raise only

11

become subject to appeal after they are re-raised in a

timely Rule 50 motion.

Those circuits that create such an exception ground

their decision not in text but in policy, reasoning only that

“[t]he rationale for requiring a Rule 50 motion does not

apply to purely legal questions.” Feld v. Feld, 688 F.3d

779, 782 (D.C. Cir. 2012); accord, e.g., Chemetall GMBH

v. ZR Energy, Inc., 320 F.3d 714, 719 (7th Cir. 2003);

Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1318 (7th

Cir. 1995). But this divide between legal and factual issues finds no support in the text or structure of section

1292 or Rule 50. Petitioner’s dissatisfaction with the

scheme Congress has adopted is not a reason to rewrite

the rules.

Even if policy were relevant, it cuts against petitioner’s position. There is no dispute that petitioner’s rule

adds work to an appellate court’s already heavy caseload:

“It is no doubt true that determining whether an issue is

based in law or fact or some combination of the two is

sometimes ‘vexing’ . . . .” Feld, 688 F.3d at 783 (quoting

Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982)).

This vexing task is unnecessary in cases where counsel act

“prudent[ly]” and “renew their arguments in a Rule 50

motion.” Id. It is surely far easier for a litigant to add one

sentence incorporating by reference an argument made at

summary judgment than it is for a court to undertake the

question of whether an issue is purely legal. See infra pp.

13-14.

Courts’ response to this point—that “it is equally true

that there are cases in which it is clear that appellant has

raise a pure issue of law, divorced from any dispute over

the facts”—is a nonstarter. Feld, 688 F.3d at 783. The

existence of the occasional purely legal issue—which is far

less common than petitioner would admit, infra pp. 1415—does not justify the expenditure of court resources to

12

find that needle in a haystack, especially when the problem could be avoided by prudent and low-cost lawyering.

See Black, 22 F.3d at 571 n.5 (noting that such a rule

“would benefit only those summary judgment movants

who failed to properly move for judgment as a matter of

law at the trial on the merits”).

Ultimately, “[t]he only error here was counsel’s failure to file a postverdict motion pursuant to Rule 50(b).”

Unitherm, 546 U.S. at 406. Indeed, when asked whether

he could have filed a Rule 50 motion to preserve their arguments, petitioner’s counsel forthrightly responded,

“Yes, we could have.” Fourth Circuit Oral Argument

01:44. There is no reason to “craft a new jurisprudence

based on a series of dubious distinctions between law and

fact” in order to rescue petitioner from an error that concededly could have been easily avoided. Black, 22 F.3d at

571 n.5.

II. The Question Presented Does Not Warrant This

Court’s Review

Since 1995, this Court has denied certiorari at least

ten times to address the same question petitioner urges

here. 2 The Court should follow the same course here. To

See Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd., 955 F.3d

1317 (Fed. Cir. 2020), cert. denied, 141 S. Ct. 2624 (2021); Eon Corp.

IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d 1314

(Fed. Cir. 2016), cert. denied, 137 S. Ct. 640 (2017); Lawson v. Sun

Microsystems, Inc., 791 F.3d 754 (7th Cir. 2015), cert. denied, 577

U.S. 1092 (2016); Caluori v. One World Techs., Inc., 555 F. App’x 995

(Fed. Cir. 2014), cert. denied, 574 U.S. 870 (2014); U.S. Fid. & Guar.

Co. v. Lee Invs. LLC, 641 F.3d 1126 (9th Cir. 2011), cert. denied, 565

U.S. 1035 (2011); F.B.T. Prods., LLC v. Aftermath Recs., 621 F.3d 958

(9th Cir. 2010), cert. denied, 562 U.S. 1286 (2011); TVT Recs. v. Island

Def Jam Music Grp., 412 F.3d 82 (2d Cir. 2005), cert. denied, 548 U.S.

904 (2006); Banuelos v. Constr. Laborers’ Tr. Funds for S. Cal., 382

F.3d 897 (9th Cir. 2004), cert. denied, 545 U.S. 1127 (2005); Michael

2

13

the extent there is disagreement between the courts of appeals on the question presented, petitioner overstates its

significance.

Any Differences in Approach Across the Circuits

Poses No Obstacle for Parties Litigating in the Federal Courts

Petitioner’s assertion (at 3) of an “intolerable” division between the courts of appeals is belied by the fact

that the disagreement he points to has existed for decades. Compare Glaros v. H.H. Robertson Co., 797 F.2d

1564, 1573-74 (Fed. Cir. 1986) (declining to consider issue

not raised in post-trial motion), cert. dismissed, 479 U.S.

1072 (1987), with Creative Cookware, Inc. v. Northland

Aluminum Prods., Inc., 678 F.2d 746, 748 (8th Cir. 1982)

(reviewing legal issue raised only at summary judgment).

Twelve of thirteen circuits have established precedent on the issue, and those courts consistently apply

their precedent to the cases in front of them. Parties in

these circuits thus have a clear understanding of how to

preserve arguments for appeal that the district court rejected: “[C]ounsel should always research and consider

the position of the circuit in which he or she is practicing.”

Pet. 2 n.1 (quoting Kelli Benham Bills, Rule 50 and Purely

Legal Arguments: A Circuit Split, ABA (June 27, 2013),

https://tinyurl.com/bdfjxdp8).

Here, for example, Fourth Circuit precedent going

back to 1995 put petitioner on notice of his responsibility

to raise arguments he lost during summary judgment in

Found., Inc. v. Urantia Found., 61 F. App’x 538 (10th Cir. 2003), cert.

denied, 540 U.S. 876 (2003); Ruyle v. Cont’l Oil Co., 44 F.3d 837 (10th

Cir. 1994), cert. denied, 516 U.S. 906 (1995), reh’g denied, 516 U.S.

1004 (1995).

14

Rule 50(a) and 50(b) motions, as he acknowledges. Chesapeake, 51 F.3d at 1235-37; Reply Brief of Appellant at 23, Younger v. Dupree, No. 21-6423 (4th Cir. Nov. 23, 2021).

Indeed, “prudent counsel” in any circuit would submit

Rule 50 motions so as not to take a chance that the appellate court disagrees as to whether their issue is purely

legal. Feld, 688 F.3d at 783; Chemetall, 320 F.3d at 719.

Petitioner thus asks the Court to resolve a question

that can be avoided by including a sentence or two in Rule

50(a) and 50(b) motions incorporating a previously made

argument. Indeed, petitioner did just that in his summary

judgment motion with respect to an issue he had raised in

his motion to dismiss. See Dupree MSJ, supra, at 3. An

issue with such a simple solution is unworthy of this

Court’s review.

The Question Presented Is Rarely Outcome Determinative

Even in those cases where parties fail to include a sentence incorporating their lost summary judgment

arguments, a circuit’s exception for purely legal issues is

often inconsequential.

1. The circuit courts that follow petitioner’s suggested rule do not commonly face purely legal questions

falling within the exception. For example, the Sixth Circuit recently found that an issue was a mixed question of

fact and law and thus not eligible for the circuit’s exception to the normal preservation rule. Hanover Am. Ins.

Co. v. Tattooed Millionaire Ent., LLC, 974 F.3d 767, 78889 (6th Cir. 2020). The court emphasized that “our exception to Rule 50’s requirements, which would allow for

review of summary-judgment motions on ‘pure questions

of law’ after a jury verdict, [is] exceptionally narrow, covering only truly abstract questions that ‘can be asked and

15

answered without reference to the facts of the case.’” Id.

at 789 (citation omitted).

Similarly, in Williams v. Gaye, 895 F.3d 1106 (9th Cir.

2018), the Ninth Circuit refused to excuse a party’s failure

to comply with Rule 50 because its “arguments ‘hardly

present “purely legal” issues capable of resolution “with

reference only to undisputed facts.”’” Id. at 1122 (citation

omitted). And, in rejecting a party’s attempt to frame its

issues as legal ones, the Tenth Circuit noted that it had

“previously cautioned that ‘prudent counsel will not rely

on their own interpretations of whether an issue is purely

a question of law or fact.’” Copar Pumice Co. v. Morris,

639 F.3d 1025, 1031 (10th Cir. 2011) (citation omitted); see

also, e.g., Murray v. Amalgamated Transit Union, 719 F.

App’x 5, 7 (D.C. Cir. 2018) (acknowledging the Circuit’s

“rare” exception for purely legal issues but finding that

the claim under consideration depended on resolution of

disputed facts and thus was not purely legal); Frank C.

Pollara Grp., LLC v. Ocean View Inv. Holding, LLC, 784

F.3d 177, 187-89 (3d Cir. 2015) (same); Ayers v. City of

Cleveland, 773 F.3d 161, 167 (6th Cir. 2014) (same).

2. Petitioner (at 19 & n.7) cites to 14 cases the circuit

courts have decided in 2020 that addressed the issue this

petition presents. But a closer look at those cases reveals

that the circuits’ approach to preserving issues on appeal

is rarely outcome determinative. For example, in Hisert

on Behalf of H2H Associates, LLC v. Haschen, 980 F.3d

6 (1st Cir. 2020), although the appellant’s arguments

“were not properly presented on appeal,” the First Circuit concluded that “they lack[ed] merit in any event.” Id.

at 8; see also Jones ex rel. United States v. Mass. Gen.

Hosp., 780 F.3d 479, 490 (1st Cir. 2015) (same).

In Gulf Engineering Co., L.L.C. v. Dow Chemical Co.,

961 F.3d 763 (5th Cir. 2020), the Fifth Circuit actually

reached appellant’s issue “[b]ecause Dow preserved this

16

issue by restating its objection in a Rule 50 motion.” Id.

at 766. And in Universal Truckload, Inc. v. Dalton Logistics, Inc., 946 F.3d 689 (5th Cir. 2020), the court did not

reach the appellant’s issue because appellant had forfeited the forfeiture issue in its appeal brief. Id. at 699

n.5. 3

3. Finally, the “profound real-world stakes” petitioner highlights in recounting damages verdicts are not

creatures of any disagreement among the circuits. Pet.

20. Juries imposed the damages awards in each case, and

able lawyering preserves the opportunity to challenge

such awards.

Thus, petitioner (at 20) wrongly claims that he “faces

a $700,000 judgment solely because he was unable to reassert his exhaustion defense on appeal.” He faces

See also Kidis v. Reid, 976 F.3d 708, 720 (6th Cir. 2020) (“Assuming the issue [of a “purely legal” exception] is live, [defendant’s]

argument nonetheless fails.”); Gerics v. Trevino, 974 F.3d 798, 807

(6th Cir. 2020) (declining to review unpreserved issue because not

purely legal); Hanover, 974 F.3d at 788-89 (same); Hurt v. Com. Energy, Inc., 973 F.3d 509, 516 (6th Cir. 2020) (same); In re Bard IVC

Filters Prod. Liab. Litig., 969 F.3d 1067, 1075 (9th Cir. 2020) (entertaining and rejecting unpreserved “purely legal” issue); Watley v.

Felsman, 839 F. App’x 728, 729 n.1 (3d Cir. 2020) (applying Ortiz to

find qualified immunity order not timely appealed); Hernandez v.

Fitzgerald, 840 F. App’x 333, 337 n.4 (10th Cir. 2020) (entertaining

unpreserved argument because it arose from a grant of summary

judgment and was in any case purely legal); Sooroojballie v. Port

Auth. of N.Y. & N.J., 816 F. App’x 536, 540 (2d Cir. 2020) (entertaining unpreserved argument because it was a question of law); Haas v.

Fancher, 802 F. App’x 538, 544 (11th Cir. 2020) (refusing to review

summary judgment denial without discussion of whether issues were

legal); Buie v. Dhillon, No. 19-5105, 2020 WL 873502, at *1 (D.C. Cir.

Feb. 14, 2020) (affirming district court because sufficiency challenge

was not preserved via Rule 50); Ferguson v. Waid, 798 F. App’x 986,

989 (9th Cir. 2020) (declining review because unpreserved issue was

not purely legal).

3

17

$700,000 in damages because of his egregious conduct.

There is no guarantee the verdict would have been vacated had his appeal been heard on the merits, and in any

case, he lost the chance to do so because his counsel failed

to follow circuit precedent despite being aware of it. Reply Brief of Appellant, supra, at 2-3.

III. This Case Is a Poor Vehicle for Addressing the Question

Presented

Even if the question presented were worthy of this

Court’s review, this case is a poor vehicle for addressing

that question. Petitioner claims that he was barred from

arguing on appeal an issue he lost at summary judgment.

But the issue he sought to raise before the Fourth Circuit

was arguably not the one the district court rejected at

summary judgment. The resolution of the question presented may thus be irrelevant to petitioner’s case. At any

rate, the new issue petitioner has raised is easily resolved

in Younger’s favor, and the Fourth Circuit is poised to resolve that issue in a related case, which could moot any

remand of petitioner’s case.

The Question Presented Is Not Outcome Determinative in This Case

The Court’s resolution of the question presented

would not impact this case because the argument petitioner raised before the Fourth Circuit was seemingly not

the “issue rejected at summary judgment.” Pet. i.

The question presented asks whether rejection of an

argument at summary judgment preserves that argument for appeal, even in the absence of Rule 50 motions

after the presentation of evidence. See, e.g., Pet. 6 (describing circuit split “over whether a party must go

through the motions of making a post-trial motion to preserve for appellate review a legal defense that was

18

already fully resolved against the party pre-trial” (emphasis added)); Pet. 21 (framing the question as “whether

the rejection of a legal defense at summary judgment is

enough to preserve it for appeal”).

But the issue petitioner raised on appeal was arguably not the one resolved against him at summary

judgment. The issue the district court resolved at summary judgment was whether the “administrative remedy

procedure (‘ARP’) is ‘available’ upon the initiation of a

parallel investigation by the Internal Investigative Unit.”

Pet.App.38a. The district court answered that question in

the affirmative: “[T]he IIU process ‘closes the door’ to the

ARP process,” making it unavailable. Pet.App.40a. And

the district court (properly) characterized the Inmate

Grievance Office as part of the ARP process.

Pet.App.38a-39a.

On appeal, petitioner conceded that “the district court

correctly determined that an IIU investigation ‘closes the

door to the ARP.’” Brief of Appellant, supra, at 15 (quoting Pet.App.40a). In other words, petitioner did not

challenge the issue “that was already fully resolved

against” him—the one that could be resurrected by this

Court’s deciding the question presented. Pet. 21.

Petitioner’s brief in the Fourth Circuit instead raised

the seemingly new argument that an IIU inquiry obviated

the need to exhaust only the first two steps of the ARP

process, but not the third step—appellate review by the

Inmate Grievance Office. Brief of Appellant, supra, at 15.

Petitioner thus argued, citing no authority, that “dismissal due to the IIU’s involvement does not affect the

19

inmate’s need to pursue the claim and seek relief with the

[Inmate Grievance Office].” Id. 4

The district court did not “fully and finally resolve[]”

this argument, Pet. 5—it addressed only whether an IIU

inquiry makes unavailable the ARP process as a whole,

including the Inmate Grievance Office. Thus, even if the

Court were to answer the question presented—whether

parties must file Rule 50 motions to preserve “a purely

legal issue rejected at summary judgment,” Pet. i—the

Court’s decision would have no impact on this case, because the issue raised on appeal seems not to be the one

rejected at summary judgment. This case thus does not

present a vehicle for the question presented.

The New Underlying Issue Is Easily Resolved for Respondent

Even if the Fourth Circuit reached the new argument

petitioner raises, it would have no trouble recognizing it

as meritless.

As noted, petitioner now agrees “that an IIU investigation ‘closes the door to the ARP.’” Brief of Appellant,

supra, at 15 (quoting Pet.App40a). Instead, he contends

that inmates must obtain review from the Inmate Grievance Office even when the IIU has initiated an inquiry.

As noted above, see supra p. 6, petitioner also renewed on appeal

his factual argument from summary judgment that the Inmate Grievance Office was available to Younger because he purportedly

“understood the administrative process” and another inmate attacked on the same day was able to “negotiat[e] the administrative

process to obtain relief.” Brief of Appellant, supra, at 17; see id. at

15-18. Petitioner does not appear to argue, nor could he, that this

argument could qualify for a “purely legal” exception, since it rests

on facts that could have been further developed at trial. Accord

Brightwell v. Hershberger, No. 11-cv-3278, 2016 WL 5815882, at *2

(D. Md. Oct. 5, 2016) (“The practical availability of remedies is not a

pure question of law.” (citing Ross v. Blake, 578 U.S. 632, 648 (2016)).

4

20

See id. (insisting that “dismissal due to the IIU’s involvement does not affect the inmate’s need to pursue the claim

and seek relief with the IGO”).

This argument makes no sense, either in this case or

in the abstract. Younger did raise a grievance with the

Inmate Grievance Office, as petitioner has often acknowledged. See, e.g., Dupree MSJ, supra, at 8. The Inmate

Grievance Office dismissed that grievance for failure to

exhaust the ARP process, id., which all parties now agree

he was not required to do. Brief of Appellant, supra, at

14-15. Younger thus did everything petitioner now claims

he was required to do in order to exhaust his claim—that

is, he properly exhausted his available remedies.

Petitioner’s conception of the Maryland system is also

wrong: The Inmate Grievance Office serves as an appellate body within the ARP process, distinct from the IIU.

Agencies within the Department of Public Safety and

Correctional Services—including the Inmate Grievance

Office, see Brief of Appellant at 13; Md. Code Ann., Corr.

Servs. § 2-201— to “[r]elinquish authority for an investigation undertaken by the IIU.” Md. Code. Regs.

12.11.01.08 (2013). The IIU thus exists outside the entire

ARP process, including the Inmate Grievance Office, and

an IIU inquiry makes that entire ARP process unavailable.

In any event, petitioner’s co-defendant, Crowder, has

raised the exact same exhaustion arguments in his own

appeal before the Fourth Circuit. See Brief of Appellant

at 51-52, Younger v. Crowder, No. 21-6422 (4th Cir. Sept.

3, 2021). The Fourth Circuit held oral argument on October 25, 2022. If the panel rejects Crowder’s identical

argument on the merits, then the underlying merits question in petitioner’s Fourth Circuit case will be mooted.

This Court’s resolution of the question presented, then,

would have no effect on the resolution of petitioner’s case.

21

CONCLUSION

For the foregoing reasons, the Court should deny the

petition.

Respectfully submitted,

ALLEN E. HONICK

DUSTIN FURMAN

FURMAN HONICK LAW

11155 Red Run Blvd.

Suite 110

Owings Mills, MD 21117

(410)844-6000

DAVID DANEMAN

WHITEFORD, TAYLOR &

PRESTON LLP

7 St. Paul Street

Baltimore, MD 21202

(410) 347-8729

AMY MASON SAHARIA

Counsel of Record

CHARLES L. MCCLOUD

MARY E. GOETZ

JACOB L. BURNETT*

WILLIAMS & CONNOLLY LLP

680 Maine Avenue SW

Washington, DC 20024

(202) 434-5000

asaharia@wc.com

Counsel for Respondent

NOVEMBER 23, 2022

*Admitted in Indiana. Practice in the District of Columbia supervised by members of the D.C. Bar as required by D.C. App. R.

49(c)(8).