Legal Docket: Prison guard grievance

MARY REICHARD, HOST: It’s Monday May 22nd, 2023. Glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

The U.S. Supreme Court handed down six opinions last week. We’ll cover those plus one oral argument today. And to get us up to speed, legal correspondent Jenny Rough is here. Good morning, Jenny.

JENNY ROUGH: Hi, Nick and Mary. Good morning. Before getting to the cases, and speaking of speed, here’s a little SCOTUS trivia. Last Wednesday, Justices Brett Kavanaugh and Ketanji Brown Jackson ran the Capital Challenge. That’s a road race in D.C. between the three branches of government and the news media. It’s been going on for 41 years. Members of Congress run it. The White House has a team. The Department of Justice, the FBI, members of the judiciary.

REICHARD: Sounds fun! And two of the justices had a team.

ROUGH: They did. Justice Kavanaugh’s team name was Running Circuit. And Justice Jackson’s team name, are you ready for this, the Jackson 5k.

REICHARD: Creative!

EICHER: Now that WORLD has a D.C. news bureau, you know what I’m thinking.

ROUGH: Yes! I’m on it. We’ll apply for a spot to compete. And awards are handed out each year for best and worst team names. So I’m collecting suggestions — send ‘em in!

REICHARD: Alright, moving right along, six opinions, so we’ll cover them quickly

First, a copyright fight. Pop artist Andy Warhol made a series of portraits based off of a celebrity photographer’s images of the musician Prince. Warhol had proper permission for a one-time use of Lisa Goldsmith’s copyright. But he later sold his Prince portraits again without Goldsmith’s consent. In a 7-2 opinion, Justice Sonia Sotomayor said Warhol’s art had the same purpose as the photographer, that is commercial sales, so it wasn’t fair use and he infringed on her rights.

Next, I’ve got another 7-2 ruling, it’s a labor dispute that involves so-called “dual status” employees, federal employees who work as technicians in the Ohio National Guard. The court held that the federal agency has authority to regulate the labor practices of state militias.

EICHER: Next opinion: Biotech company Amgen accused a pharmaceutical company of patent infringement. Specifically, its patents related to a drug designed to lower “bad” cholesterol. The pharmaceutical company argued the patents weren’t properly granted. A lower court agreed and invalidated the patents. And in a unanimous opinion, the Supreme Court affirmed that. A patent law requirement known as enablement says a patent application must describe the invention in clear and concise terms. If that’s done, the inventor is granted the exclusive right to use the invention for a set amount of time. But here, Amgen failed adequately to describe the broad claims it said its patents covered.

ROUGH: Onto opinion four—another unanimous decision. And a victory for the IRS. On its paper chase to collect a tax debt, the IRS issued summonses to the delinquent taxpayer’s banks where his wife and law firms had accounts. But the IRS didn’t give notice to the wife or the law firms. The question in the case: Can the IRS withhold notice when it’s collecting a tax debt? Answer: yes. The court said an ordinary reading of the statute’s language permits that.

REICHARD: Finally, the last two cases involve the accountability of tech and social media companies. In one, a family alleged that Twitter permitted ISIS to promote terrorist content on its platform and that amounted to aiding and abetting an international attack. But a unanimous court said Twitter didn’t have the proper intent required for someone to sue.

EICHER: In a related case against Google, the justices remanded the case to the lower court and gave a set of instructions to consider the plaintiff’s claims in light of the Twitter ruling that Mary just mentioned.

REICHARD: But they didn’t mention my name. And last but not least, one oral argument to cover today. The case Dupree v. Younger. Jenny, set that up for us.

ROUGH: Right, so I’ll begin with the legal question in the case. It centers on what a party must do to properly preserve a matter for appeal.

Let’s back up to September 30, 2013, the night of a violent assault at a Baltimore prison. Three prison guards yanked inmate Kevin Younger out of the top bunk of his prison bed and beat him up. A prison official, Neil Dupree, ordered the assault.

So Younger sued Dupree in federal court for violating his civil rights.The facts aren’t in dispute. Here’s lawyer Andrew Tutt, representing Dupree.

ANDREW TUTT: And I want to make very clear we don't dispute anything that Mr. Younger says he did or happened to him. We don't dispute any facts in this case. Nothing is disputed.

ROUGH: What is in dispute: a procedural question.

Before trial, Dupree filed a motion for summary judgment. That says even if everything the plaintiff claims is true, he’s still going to lose. So judge, you should get rid of the lawsuit.

Specifically, Dupree argued Younger first needed to exhaust the prison’s internal grievance process before bringing a case in court. But the judge denied that motion. At this point Dupree couldn’t appeal because there’s no final judgment. The case isn’t over yet.

REICHARD: It went to trial. Dupree didn’t re-raise his defense that Younger first needed to exhaust the grievance process. A jury found in favor of Younger and awarded him $700,000. At this point, Dupree filed another motion, one to reduce the verdict. In that post-trial motion, he didn’t mention the exhaustion defense either.

With a final judgment, the time had come for appeals. And Dupree wanted to appeal the trial judge’s denial of the summary judgment motion, the one filed before trial. But the appellate court refused to hear it on the grounds it was a preliminary matter, not part of the final judgment. At the Supreme Court, Dupree’s lawyer argued that’s wrong.

TUTT: Any good lawyer would think that after exhaustively briefing this issue and after an opinion on it saying this fact is established and, under this fact, you cannot prevail on this defense, they would not believe that they needed to do anything further to preserve that issue for review.

ROUGH: Justice Neil Gorsuch didn’t understand why Dupree didn’t just bring up the defense again at trial.

JUSTICE GORSUCH: I would have thought that an affirmative defense, you would have had to raise something at trial. You didn't even make a proffer of evidence. You didn't do anything at trial on your own affirmative defense.

ROUGH: But Justice Jackson jumped in to disagree with Gorsuch and side with Dupree.

JUSTICE JACKSON: As a district judge, I think I would be annoyed if you tried to re-raise issues related to this exhaustion question that I had already ruled on, you know, in this way.

TUTT: No, Your Honor, I accept the help. I think you're agreeing with me that you would never raise this at trial because the judge has already said this claim is over.

REICHARD: Justice Gorsuch wasn’t letting go easily. He said it’s just good lawyering to bring up all defenses at trial, or at a minimum, add one sentence in the post-trial motion to preserve it.

GORSUCH: Prudent counsel will always put that line in anyway to avoid malpractice possibilities later. I think, I mean, I'm just thinking back to my practice days, and I would always put that line in. Better safe than sorry.

ROUGH: Amy Saharia argued for Younger.

AMY SAHARIA: When a court denies a defendant's motion for summary judgment on an affirmative defense, as here, the defendant must raise his defense at trial to preserve it.

ROUGH: But Justice Elena Kagan challenged that logic.

KAGAN: In a case like this, the court is going to look at the person and say: What are you talking about, I already ruled against you?

SAHARIA: I don't think the district court necessarily would have come to that conclusion at all. We don't know because he didn't ask the court.

ROUGH: Justice Gorsuch came back again to hammer away at his position: one sentence on paper is the way to go. Especially these days.

GORSUCH: Counsel, we used to live in a world of trials. Now nobody wants to try—everybody wants to do everything on the papers.

SAHARIA: I go to trial, Your Honor.

GORSUCH: I miss it too. It's a lot of fun, isn't it?

SAHARIA: It sure is.

JUSTICE SONIA SOTOMAYOR: More fun than here.

GORSUCH: I expect you're having fun here today too, though.

SAHARIA: There's only one judge at trial. [Laughter]

REICHARD: The Federal Rules of Civil Procedure govern here. They set forth the do’s and don’ts with regard to summary judgment and post-trial motions. And Justice Samuel Alito hit the heart of the problem about them in this exchange with Dupree’s attorney.

JUSTICE ALITO: What if this rule were spelled out in black and white in the Federal Rules of Civil Procedure? So it would be simple that going forward, attorneys would be charged with reading the rule and seeing that this is what they have to do, and it would be very simple.

TUTT: Your Honor, if that were in the rules, I think we’d have to follow it.

ALITO: But, right now, it's not clear?

TUTT: It's not clear. It's not in the rules.

ROUGH: The technicality of adding one-line to the post-trial motion has crept into practice. Some follow it, others don’t. And it has resulted in a circuit split. Most of the circuits support Dupree here. Raising a matter in a summary judgment motion before trial is enough to preserve it for appeal. Either way, a uniform rule about proper procedure is called for.

That’s this week’s Legal Docket. I’m Jenny Rough.

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