Marshall Grace v. United States

In Pullman-Standard v. Swint, the Court held that, where a federal district court has failed to determine whether a party intended to engage in discrimination, federal appellate courts generally may not resolve that question in the first instance and should instead remand. 456 U.S. 273, 291-293 (1982). The Second, Fourth, Sixth, and Seventh Circuits hold, consistent with Pullman-Standard, that federal appellate courts may not initially determine whether a peremptory strike was intentionally discriminatory under the third step of Batson v. Kentucky, 476 U.S. 79 (1986). Where a federal district court has failed to make that determination, those circuits therefore hold that “the ultimate Batson issue cannot be resolved without a remand.” United States v. Rutledge, 648 F.3d 555, 560 (7th Cir. 2011). The Fifth and Ninth Circuits have taken a different approach. Where a federal district court fails to make an intent determination under step three, they permit the appellate court to “decide de novo” whether the strike was “motivated by purposeful discrimination.” United States v. AlvarezUlloa, 784 F.3d 558, 565 (9th Cir. 2015). The question presented is: May a federal appellate court, after concluding that a federal district court has failed to make necessary findings under step three of Batson v. Kentucky, 476 U.S. 79 (1986), proceed to make those findings in the first instance?