Dupree v. Younger

Summary

A post-trial motion under Federal Rule of Civil Procedure 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment.

Text

Page Proof Pending Publication
PRELIMINARY PRINT 
Volume 598 U. S. Part 2 
Pages 729–738 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
May 25, 2023 
REBECCA A. WOMELDORF 
reporter of decisions 
NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

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729 
OCTOBER TERM, 2022 
Syllabus 
DUPREE v. YOUNGER 
certiorari to the united states court of appeals for 
the fourth circuit 
No. 22–210. Argued April 24, 2023—Decided May 25, 2023 
Respondent Kevin Younger claims that during his pretrial detention in a 
Maryland state prison, petitioner Neil Dupree, then a correctional off-
cer lieutenant, ordered three prison guards to attack him. Younger 
sued Dupree for damages under 42 U. S. C. § 1983, alleging excessive 
use of force. Prior to trial, Dupree moved for summary judgment 
under Federal Rule of Civil Procedure 56(a), arguing that Younger had 
failed to exhaust administrative remedies as required by law. Rule 56 
requires a district court to enter judgment on a claim or defense if there 
is “no genuine dispute as to any material fact and the movant is entitled 
to judgment as a matter of law.” The District Court denied the motion, 
fnding no dispute that the Maryland prison system had internally inves-
tigated Younger's assault, and concluding that this inquiry satisfed 
Younger's exhaustion obligation. At trial, Dupree did not present evi-
dence relating to his exhaustion defense. The jury found Dupree and 
four codefendants liable and awarded Younger $700,000 in damages. 
Dupree did not fle a post-trial motion under Rule 50(b), which allows a 
disappointed party to fle a renewed motion for judgment as a matter 
of law. He appealed a single issue to the Fourth Circuit: the District 
Court's rejection of his exhaustion defense. The Fourth Circuit— 
bound by its precedent which holds that any claim or defense rejected 
at summary judgment is not preserved for appellate review unless it 
was renewed in a post-trial motion—dismissed the appeal. 
Held: A post-trial motion under Rule 50 is not required to preserve for 
appellate review a purely legal issue resolved at summary judgment. 
In Ortiz v. Jordan, the Court held that an order denying summary judg-
ment on suffciency-of-the-evidence grounds is not appealable after trial. 
562 U. S. 180, 184. Because the factual record developed at trial “super-
sedes the record existing at the time of the summary-judgment motion,” 
ibid., it follows that a party must raise a suffciency claim in a post-trial 
motion in order to preserve it for appeal, id., at 191–192. That motion 
allows the district court to take frst crack at the question that the 
appellate court will ultimately face: Was there suffcient evidence in the 
trial record to support the jury's verdict? 
The same is not true for pure questions of law resolved in an order 
denying summary judgment. These conclusions are not “supersede[d]”

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 DUPREE v. YOUNGER 
Syllabus 
by later developments in the litigation, id., at 184, and so such rulings 
merge into the fnal judgment, at which point they are reviewable on 
appeal, Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 712. The re-
viewing court does not beneft from having a district court reexamine a 
purely legal pretrial ruling after trial, because nothing at trial will have 
given the district court any reason to question its prior analysis. 
Younger's counterarguments are unpersuasive. Ortiz does not hold, 
as Younger contends, that any order denying summary judgment— 
whether decided on legal or factual grounds—is unreviewable under 28 
U. S. C. § 1291. While an interlocutory order denying summary judg-
ment is typically not immediately appealable, § 1291 does not insulate 
interlocutory orders from appellate scrutiny, but rather delays their re-
view until fnal judgment. And while Younger insists there should be 
no two-track system of summary judgment, in which factual and legal 
claims follow different routes, nothing in Rule 56 supports his argument 
for uniformity. On the contrary, ftting the preservation rule to the 
rationale (factual or legal) underlying the summary-judgment order is 
consistent with the text of Rule 56. It also makes sense: Factual devel-
opment at trial will not change the district court's pretrial answer to a 
purely legal question, so a post-trial motion requirement would amount 
to an empty exercise. Finally, while Younger predicts that a separate 
preservation rule for legal issues will prove unworkable because the 
line between factual and legal questions can be “vexing” for courts and 
litigants, Pullman-Standard v. Swint, 456 U. S. 273, 288, experience 
demonstrates that Younger overstates the need for a bright-line rule. 
“Courts of appeals have long found it possible to separate factual from 
legal matters.” Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 
U. S. 318, 328. Here, the Court does not decide whether the issue 
Dupree raised on appeal is purely legal, and remands for the Fourth 
Circuit to evaluate that question in the frst instance. Pp. 733–738. 
Vacated and remanded. 
Barrett, J., delivered the opinion for a unanimous Court. 
Andrew T. Tutt argued the cause for petitioner. With him 
on the briefs were R. Stanton Jones, Sean A. Mirski, Dana 
Or, and Aaron Bowling . 
Amy Mason Saharia argued the cause for respondent. 
With her on the brief were Lisa S. Blatt, A. Joshua Podoll, 
and Allen E. Honick.* 
*Briefs of amici curiae urging reversal were fled for the DRI Center 
for Law and Public Policy by Matthew T. Nelson and Charles R. Quigg; 
and for Law Professors by Steffen N. Johnson and Conor Tucker.

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Cite as: 598 U. S. 729 (2023) 
Opinion of the Court 
Justice Barrett delivered the opinion of the Court. 
In Ortiz v. Jordan, we held that an order denying sum-
mary judgment on suffciency-of-the-evidence grounds is not 
reviewable on appeal after a trial. 562 U. S. 180 (2011). 
Thus, a party who wants to preserve a suffciency challenge 
for review on appeal must raise it anew in a post-trial mo-
tion. The question presented in this case is whether this 
preservation requirement extends to a purely legal issue re-
solved at summary judgment. The answer is no. 
I 
A 
The Federal Rules of Civil Procedure empower district 
courts to direct the entry of judgment before, during, or 
after trial. Before trial, the defendant can fle a motion to 
dismiss the complaint based on certain defenses, such as lack 
of jurisdiction or failure to state a claim upon which relief 
can be granted. Fed. Rule Civ. Proc. 12(b). If the district 
court denies that motion (or any other Rule 12 motion), the 
case advances to discovery for the parties to marshal evi-
dence supporting their claims and defenses. During or after 
that process, either party can move for summary judgment 
under Rule 56, which requires a district court to enter judg-
ment on a claim or defense if there is “no genuine dispute as 
to any material fact and the movant is entitled to judgment 
as a matter of law.” Fed. Rule Civ. Proc. 56(a). 
If the plaintiff's claims survive summary judgment, the 
case proceeds to trial. After the presentation of evidence, 
but before the case is submitted to the jury, Rule 50(a) 
authorizes either party to move for judgment as a matter 
of law.
1 This standard largely “mirrors” the summary-
judgment standard, the difference being that district courts 
evaluate Rule 50(a) motions in light of the trial record rather 
1 If the parties waive their rights to a jury or seek relief that does not 
entitle them to a jury, the district court will hold a bench trial, which is 
governed by Rule 52.

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 DUPREE v. YOUNGER 
Opinion of the Court 
than the discovery record. Anderson v. Liberty Lobby, Inc., 
477 U. S. 242, 250–251 (1986). 
If the district court does not grant the motion, then the 
jury will render a verdict. After the verdict, Rule 50(b) 
permits a disappointed party to fle a renewed motion for 
judgment as a matter of law (which may also include a re-
quest for a new trial under Rule 59). The next step for a 
party who fails to obtain post-trial relief is an appeal. 
B 
While Kevin Younger was being held as a pretrial detainee 
in a Maryland state prison, three corrections offcers as-
saulted him. Younger believed that Neil Dupree, a former 
lieutenant in the prison, had ordered the attack. He sued 
Dupree and other prison offcials for damages under 42 
U. S. C. § 1983, alleging that they had used excessive force in 
violation of his Fourteenth Amendment due process rights. 
Dupree moved for summary judgment, arguing that 
Younger had failed to exhaust his administrative remedies 
as required by the Prison Litigation Reform Act, 42 U. S. C. 
§ 1997e(a). The District Court denied the motion. It noted 
factual disagreements between the parties about whether 
Younger had adhered to Maryland's Administrative Remedy 
Procedure but concluded that it “need not resolve [those] dis-
putes.” Younger v. Green, Civ. No. 16–3269 (D Md., Dec. 19, 
2019), App. to Pet. for Cert. 42a. Instead, the court ob-
served that there was “no dispute” that the Maryland prison 
system had internally investigated Younger's assault. Ibid. 
And it held that this inquiry satisfed Younger's exhaustion 
obligation. 
The case then proceeded to a jury trial. Dupree did not 
present any evidence relating to his exhaustion defense, nor 
did he invoke exhaustion in his Rule 50(a) motion, which the 
District Court denied. The jury found Dupree and four of 
his codefendants liable and awarded Younger $700,000 in dam-
ages. Dupree did not fle a post-trial motion under Rule 50(b).

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Cite as: 598 U. S. 729 (2023) 
Opinion of the Court 
Dupree appealed to the Fourth Circuit. He sought review 
of a single issue: the District Court's rejection of his exhaus-
tion defense at summary judgment. Unfortunately for 
Dupree, the appeal was over before it began. Fourth Cir-
cuit precedent maintains that a claim or defense rejected at 
summary judgment is not preserved for appellate review un-
less it was renewed in a post-trial motion—even when the 
issue is a purely legal one. Varghese v. Honeywell Int'l, 
Inc., 424 F. 3d 411, 422–423 (2005). Bound by this prece-
dent, the panel dismissed the appeal. 
The Fourth Circuit's decision further cemented a confict 
among the Courts of Appeals over whether a purely legal 
challenge resolved at summary judgment must be renewed 
in a post-trial motion in order to preserve that challenge 
for appellate review. We granted certiorari to resolve the 
disagreement.
2 598 U. S. ––– (2023). 
II 
A 
The jurisdiction of the Courts of Appeals under 28 U. S. C. 
§ 1291 is limited to “appeals from . . . fnal decisions of the 
2 Compare Rothstein v. Carriere, 373 F. 3d 275, 284 (CA2 2004) (post-
trial motion not required to preserve claims of purely legal error); Frank 
C. Pollara Group, LLC v. Ocean View Inv. Holding, LLC , 784 F. 3d 177, 
187 (CA3 2015) (same); In re AmTrust Financial Corp., 694 F. 3d 741, 
750–751 (CA6 2012) (same); Chemetall GMBH v. ZR Energy, Inc., 320 
F. 3d 714, 719–720 (CA7 2003) (same); Banuelos v. Construction Laborers' 
Trust Funds for Southern Cal., 382 F. 3d 897, 902–903 (CA9 2004) (same); 
Wolfgang v. Mid-America Motorsports, Inc., 111 F. 3d 1515, 1521 (CA10 
1997) (same); Feld v. Feld, 688 F. 3d 779, 783 (CADC 2012) (same), with Ji 
v. Bose Corp., 626 F. 3d 116, 127–128 (CA1 2010) (post-trial motion required 
to preserve claims of pure legal error); Varghese v. Honeywell Int'l, Inc., 
424 F. 3d 411, 422–423 (CA4 2005) (same); Feld Motor Sports, Inc. v. Trax-
xas, L. P ., 861 F. 3d 591, 596 (CA5 2017) (same); American Builders Ins. 
Co. v. Southern-Owners Ins. Co., 56 F. 4th 938, 950 (CA11 2023) (same); 
see also New York Marine & Gen. Ins. Co. v. Continental Cement Co., 761 
F. 3d 830, 838–839 (CA8 2014) (post-trial motion not required to preserve 
“preliminary” legal issues).

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Opinion of the Court 
district courts.” Interlocutory orders—those that do not 
dispose of the whole case, like denials of summary judg-
ment—are typically not immediately appealable under 
§ 1291.
3 Instead, the “general rule is that `a party is entitled 
to a single appeal, to be deferred until fnal judgment has 
been entered, in which claims of district court error at any 
stage of the litigation may be ventilated.' ” Quackenbush v. 
Allstate Ins. Co., 517 U. S. 706, 712 (1996); see also 15A 
C. Wright, A. Miller, & E. Cooper, Federal Practice and Pro-
cedure § 3905.1 (3d ed. 2022) (generally, “an appeal from fnal 
judgment opens the record and permits review of all rulings 
that led up to the judgment”). 
Some interlocutory district-court rulings, however, are un-
reviewable after fnal judgment because they are overcome 
by later developments in the litigation. As Ortiz explains, 
one such ruling is the denial of summary judgment on 
suffciency-of-the-evidence grounds. 562 U. S., at 184. Fac-
tual challenges depend on, well, the facts, which the parties 
develop and clarify as the case progresses from summary 
judgment to a jury verdict. Thus, “[o]nce the case proceeds 
to trial, the full record developed in court supersedes the 
record existing at the time of the summary-judgment mo-
tion.” Ibid. So after trial, a district court's assessment of 
the facts based on the summary-judgment record becomes 
“ancient history and [is] not subject to appeal.” Empress 
Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F. 3d 
815, 823–824 (CA7 2016). Fact-dependent rulings must be 
appraised in light of the complete trial record. 
It follows, Ortiz holds, that a party must raise a 
suffciency-of-the-evidence claim in a post-trial motion to 
preserve it for review on appeal. 562 U. S., at 191–192. 
Appellate review, by its nature, requires a lower court deci-
sion to review. Freytag v. Commissioner, 501 U. S. 868, 895 
3 The collateral-order doctrine recognizes exceptions to this rule. For 
instance, an interlocutory order denying qualifed immunity is sometimes 
immediately appealable. Mitchell v. Forsyth, 472 U. S. 511, 530 (1985).

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Opinion of the Court 
(1991) (Scalia, J., concurring in part and concurring in judg-
ment) (the “very word `review' presupposes that a litigant's 
arguments have been raised and considered in the tribunal 
of frst instance”). This is especially important for factual 
challenges based on the trial record, which “cal[l] for the 
judgment in the frst instance of the judge who saw and 
heard the witnesses and has the feel of the case which no 
appellate printed transcript can impart.” Cone v. West Vir-
ginia Pulp & Paper Co., 330 U. S. 212, 216 (1947). The fling 
of a post-trial motion under Rule 50 allows the district court 
to take frst crack at the question that the appellate court 
will ultimately face: Was there suffcient evidence in the trial 
record to support the jury's verdict? Absent such a motion, 
“an appellate court is `powerless' to review the suffciency of 
the evidence after trial.” Ortiz, 562 U. S., at 189 (quoting 
Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 
U. S. 394, 405 (2006)). 
B 
Younger urges us to extend Ortiz's holding to cover pure 
questions of law resolved in an order denying summary judg-
ment. We decline the invitation. 
While factual issues addressed in summary-judgment de-
nials are unreviewable on appeal, the same is not true of 
purely legal issues—that is, issues that can be resolved with-
out reference to any disputed facts. Trials wholly supplant 
pretrial factual rulings, but they leave pretrial legal rulings 
undisturbed. The point of a trial, after all, is not to hash 
out the law. Because a district court's purely legal conclu-
sions at summary judgment are not “supersede[d]” by later 
developments in the litigation, Ortiz, 562 U. S., at 184, these 
rulings follow the “general rule” and merge into the fnal 
judgment, at which point they are reviewable on appeal, 
Quackenbush, 517 U. S., at 712. 
That difference explains why a summary-judgment motion 
is suffcient to preserve legal but not factual claims. As 
Ortiz explains, an appellate court's review of factual chal-

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 DUPREE v. YOUNGER 
Opinion of the Court 
lenges after a trial is rooted in the complete trial record, 
which means that a district court's factual rulings based on 
the obsolete summary-judgment record are useless. A dis-
trict court's resolution of a pure question of law, by contrast, 
is unaffected by future developments in the case. From the 
reviewing court's perspective, there is no beneft to having a 
district court reexamine a purely legal issue after trial, be-
cause nothing at trial will have given the district court any 
reason to question its prior analysis. We therefore hold that 
a post-trial motion under Rule 50 is not required to preserve 
for appellate review a purely legal issue resolved at sum-
mary judgment. 
C 
Younger's counterarguments do not persuade us other-
wise. First, he argues that under Ortiz, an order denying 
summary judgment is not a “fnal decision” under § 1291 and 
cannot be appealed, regardless of whether the motion was 
decided on legal or factual grounds. We agree that a denial 
of summary judgment is “simply a step along the route to 
fnal judgment,” and so is typically not immediately review-
able on appeal. Ortiz, 562 U. S., at 184. But § 1291 does 
not insulate interlocutory orders from appellate scrutiny; it 
simply delays review until fnal judgment. Richardson-
Merrell Inc. v. Koller, 472 U. S. 424, 430 (1985) (noting that 
some errors in interlocutory orders “go uncorrected until the 
appeal of a fnal judgment”). Indeed, the Ortiz Court ex-
pressly declined to address whether summary-judgment de-
nials on purely legal issues are reviewable. 562 U. S., at 190. 
That caveat would have made little sense had the Court au-
thoritatively decided that all summary-judgment denials are 
meaningless passthroughs that appellate courts should 
ignore. 
Next, Younger complains that Dupree's rule creates a two-
track system of summary judgment, in which factual and 
legal claims follow different routes. Summary judgment is 
summary judgment, Younger insists, so the claims should all

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Cite as: 598 U. S. 729 (2023) 
Opinion of the Court 
travel the same line. But nothing in Rule 56 demands such 
uniformity. On the contrary, the Rule provides that sum-
mary judgment is appropriate when “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.” Fed. 
Rule Civ. Proc. 56(a) (emphasis added). Rule 56 thus con-
templates that the court will sometimes deny the motion be-
cause the facts are genuinely in dispute and other times 
because the law does not support the movant's position. 
Fitting the preservation rule to the court's rationale (factual 
or legal) is therefore consistent with the text. 
It also makes sense. Because a purely legal question is, 
by defnition, one whose answer is independent of disputed 
facts, factual development at trial will not change the district 
court's answer. (Granted, the district court might back-
track, but if the question is purely legal, that is because of 
law books, not trial exhibits.) So what would a repeat-
motion requirement for legal questions typically amount to? 
For litigants, a copy and paste of summary-judgment mo-
tions into post-trial format. For district courts, the tedium 
of saying no twice. There is no reason to force litigants and 
district courts to undertake that empty exercise. 
Rule 56 aside, Younger insists that Rule 50 supports him. 
Under this Rule, a district court can grant judgment as a 
matter of law if it fnds that “a reasonable jury would not 
have a legally suffcient evidentiary basis to fnd for the 
party on that issue.” Fed. Rules Civ. Proc. 50(a), (b) (em-
phasis added). Therefore, Younger says, a Rule 50 motion 
is an appropriate vehicle for raising purely legal issues once 
a case proceeds to trial. Maybe so, but this argument is 
beside the point: Even if a party can raise legal issues in a 
Rule 50 motion, nothing in the Rule requires her to do so. 
Finally, Younger predicts that a separate preservation 
rule for legal issues will prove unworkable because the line 
between factual and legal questions can be “vexing” for 
courts and litigants. Pullman-Standard v. Swint, 456 U. S.

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 DUPREE v. YOUNGER 
Opinion of the Court 
273, 288 (1982). That's a fair concern, and it would not be 
surprising if “prudent counsel . . . make sure to renew their 
arguments in a Rule 50 motion” out of an abundance of cau-
tion. Feld v. Feld, 688 F. 3d 779, 783 (CADC 2012). But 
Younger overstates the need for a bright-line rule in this 
area. “Courts of appeals have long found it possible to sepa-
rate factual from legal matters.” Teva Pharmaceuticals 
USA, Inc. v. Sandoz, Inc., 574 U. S. 318, 328 (2015). Though 
there will be edge cases, the experience of the majority of 
circuits demonstrates that the Courts of Appeals are up to 
the task. See n. 2, supra. And for all the virtues of bright-
line rules, Younger's would come at a steep cost: the loss of 
appellate review for unwary litigants who think it futile to 
relitigate an already-rejected legal argument. 
III 
The Fourth Circuit was wrong to hold that purely legal 
issues resolved at summary judgment must be renewed in 
a post-trial motion. We need not decide whether the issue 
Dupree raised on appeal is purely legal—the Court of Ap-
peals may evaluate that and any other properly preserved 
arguments in the frst instance. We therefore vacate the 
judgment of the Court of Appeals and remand the case for 
further proceedings consistent with this opinion. 
It is so ordered.

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Reporter’s Note 
The attached opinion has been revised to refect the usual publication 
and citation style of the United States Reports. The revised pagination 
makes available the offcial United States Reports citation in advance of 
publication. The syllabus has been prepared by the Reporter of Decisions 
for the convenience of the reader and constitutes no part of the opinion of 
the Court. A list of counsel who argued or fled briefs in this case, and 
who were members of the bar of this Court at the time this case was 
argued, has been inserted following the syllabus. Other revisions may 
include adjustments to formatting, captions, citation form, and any errant 
punctuation. The following additional edits were made: 
p. 731, line 3, “appealable” is changed to “reviewable on appeal”
p. 731, line 4, “review on” is inserted after “for”
p. 733, line 1, the frst sentence of the paragraph is deleted and replaced
with: “Dupree appealed to the Fourth Circuit. He sought review of a
single issue: the District Court's rejection of his exhaustion defense at
summary judgment.”
p. 734, in the last sentence of the full paragraph, “appeals” is changed
to “rulings”
p. 734, line 31, “review on” is inserted before “appeal.”
p. 736, lines 19–20, “appealable” is changed to “reviewable on appeal”

Retrieval chunks

• #1

  Page Proof Pending Publication PRELIMINARY PRINT Volume 598 U. S. Part 2 Pages 729–738 OFFICIAL REPORTS OF THE SUPREME COURT May 25, 2023 REBECCA A. WOMELDORF reporter of decisions NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notif…

• #2

  ment on suffciency-of-the-evidence grounds is not appealable after trial. 562 U. S. 180, 184. Because the factual record developed at trial “super- sedes the record existing at the time of the summary-judgment motion,” ibid., it follows that a party must raise a suffciency claim in a post-trial motion in order to …

• #3

  demonstrates that Younger overstates the need for a bright-line rule. “Courts of appeals have long found it possible to separate factual from legal matters.” Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U. S. 318, 328. Here, the Court does not decide whether the issue Dupree raised on appeal is purely legal…

• #4

  case proceeds to trial. After the presentation of evidence, but before the case is submitted to the jury, Rule 50(a) authorizes either party to move for judgment as a matter of law. 1 This standard largely “mirrors” the summary- judgment standard, the difference being that district courts evaluate Rule 50(a) mot…

• #5

  his codefendants liable and awarded Younger $700,000 in dam- ages. Dupree did not fle a post-trial motion under Rule 50(b). Page Proof Pending Publication 733 Cite as: 598 U. S. 729 (2023) Opinion of the Court Dupree appealed to the Fourth Circuit. He sought review of a single issue: the District Court's reject…

• #6

  DUPREE v. YOUNGER Opinion of the Court district courts.” Interlocutory orders—those that do not dispose of the whole case, like denials of summary judg- ment—are typically not immediately appealable under § 1291. 3 Instead, the “general rule is that `a party is entitled to a single appeal, to be deferred until …

• #7

  of frst instance”). This is especially important for factual challenges based on the trial record, which “cal[l] for the judgment in the frst instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.” Cone v. West Vir- ginia Pulp & Paper C…

• #8

  a post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at sum- mary judgment. C Younger's counterarguments do not persuade us other- wise. First, he argues that under Ortiz, an order denying summary judgment is not a “fnal decision” under § 1291 and cann…

• #9

  law books, not trial exhibits.) So what would a repeat- motion requirement for legal questions typically amount to? For litigants, a copy and paste of summary-judgment mo- tions into post-trial format. For district courts, the tedium of saying no twice. There is no reason to force litigants and district courts to…

• #10

  judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Page Proof Pending Publication Reporter’s Note The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination…