(Posted February 3, 2023) I’ve seen a couple of newsworthy tidbits and thought it wise to update you on them.


SCOTUS to review 4CA waiver rule

Fourth Circuit practitioners will be interested in the upcoming oral argument at One First Street of Dupree v. Younger. Those Other Robes will presumably resolve a split in the federal circuits over a vexing waiver rule. Here’s the setup:

Younger was a pretrial detainee in a Maryland lockup in 2013 when, without provocation, three corrections officers entered his cell as he slept and beat him savagely. The officers were themselves criminally convicted, and the warden ended up resigning.

The detainee sued Dupree, a supervisor who allegedly ordered the attack, in a federal court in Maryland. Before trial, the supervisor moved for summary judgment, alleging that the detainee had failed to exhaust available administrative remedies. The district court denied summary judgment and the case proceeded to a 10-day jury trial. The jury awarded the detainee $700,000 in damages.

The supervisor sought remittitur of the damages, but the district court denied that motion and entered judgment on the verdict. The supervisor appealed the exhaustion ruling, but a Fourth Circuit panel dismissed the appeal, holding that the supervisor hadn’t renewed his MSJ in his post-trial filing. Circuit precedent holds that an appellant waives appellate review of an issue where he loses in a pretrial summary-judgment motion and doesn’t assert the same issue after the verdict.

From this, you may be surprised to learn that SCOTUS granted cert. But as noted above, there’s a split in the circuits on one aspect of this rule. Eight circuits part company with the Fourth when the non-renewed argument is, as here, one of pure law, not one of fact; in such situations, they hold that post-verdict renewal isn’t required. The Fourth is admittedly – proudly, even – part of a small minority on this point.

The Supreme Court will entertain oral argument in the case on April 24. Because of the late-April argument date, I expect a ruling at the very end of June. For everyone except we cool people (who care about appellate-geek issues like waiver), this won’t be one of the hot-button, high-profile decisions that always come down at the very end of the term, so whenever it arrives, it might be lost in the noise of the media-magnet decisions.


A scientific wild guess at near-future SCV argument dockets

I’ve mentioned here recently that the writ mill at Ninth and Franklin appears to be broken, or at least dinged. We only have one appeal awarded from the Supreme Court’s October panels, and just three from the December gathering. Those writs are the fuel of future merits sessions. The typical delay from writ grant to merits argument is on the order of six months, give or take a couple.

This portends some tiny sessions in 2023. The February/March session convenes in just under four weeks, and I expect to see eight cases on it unless the court bumps one or two back to April. Those will be the appeals awarded back in September. The April session, in contrast, might only have a single appeal, or something like that paucity. It’s not unthinkable that the court could simply skip a session at some point for lack of matured business. And with only four appeals argued in the January session, we’re staring hard at historically low numbers for merits arguments and published opinions this year.

Why the crash in the writ market? I’ve speculated about this before. SB1261, mandating a detour to the Court of Appeals, is largely, though not completely, to blame. The Supreme Court simply has far less incoming business, as civil cases wend their way through the CAV.

Even so, the grant rate in petitions argued in October and December was just 5.3%, far lower than in past years. That may be because the cases that made their way through the SCV pipeline in 2022 were the ones that had visited the CAV the previous year. That means plenty of criminal petitions, and those historically have a very small grant rate.

The last likely suspect is that the Supreme Court might now perceive itself as a court purely of law development, in which case the grant rate will remain suppressed well into the future. This would mean that the justices will have made a conscious decision to grant fewer appeals.

Let’s return to the header for this section: These are scientific wild guesses. I don’t have any inside information on any of this. All I know is that statistics don’t lie, regardless of what Mark Twain or Benjamin Disraeli (nobody’s sure who said it first) noted about them.

Perhaps we should end this on a sunny note: I really do believe that the second half of 2023 will generate a brighter outlook for the appeals market in the Supreme Court. By then, the Court of Appeals will have fully processed a year’s worth of civil cases, and some of those will end up next door, in the justices’ laps. The year-long numbers will be a wreck, of course, but that was foreseeable.