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Argument preview: appealing a summary judgment denial following a full trial

If a party files an unsuccessful motion for summary judgment and fails to appeal the denial, opting instead to go forward with a full trial on the merits, may that party then appeal the order denying summary judgment?  The Court will consider this question today in Ortiz v. Jordan (No. 09-737).

Although the case presents a fairly technical legal question, the facts of the case are anything but mundane.  Petitioner Michelle Ortiz was sexually assaulted by a corrections officer while serving a one-year prison sentence; she reported the assault, but was then assaulted again the next night.  And in retaliation for reporting the incidents, Ortiz was shackled and placed into solitary confinement.  She filed a Section 1983 claim against respondent Paula Jordan, who was a case manager at the prison, on the ground that Jordan failed to take adequate steps to protect her; she also filed a claim against respondent Rebecca Bright, who was responsible for her time in solitary confinement.

Jordan and Bright initially filed a motion for summary judgment, arguing that they were entitled to qualified immunity.  When the district court denied the motion, Jordan and Bright did not appeal, opting instead to go to a trial on the merits – after which a jury awarded Ortiz more than six hundred thousand dollars.  Jordan and Bright subsequently appealed the judgment and the district court’s order denying summary judgment to the Sixth Circuit, which reversed the denial of summary judgment.  Ortiz then filed a petition for certiorari in which she alleged that the courts of appeals are split on the question of when, if ever, a party may appeal the denial of summary judgment after a full trial.  The Court granted the petition on April 26, 2010.

In her brief on the merits, Ortiz emphasizes that decisions on appeal are normally limited to final decisions under 28 U.S.C. § 1291.  In particular, she points out, the court recently held in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. (2006) that “the failure to renew a motion for judgment as a mater of law after the verdict . . . leaves a court of appeals ‘powerless’ to review the issue.”  Moreover, the Court in Unitherm rejected precisely the arguments that courts of appeals have made to justify an exception – for pure “questions of law” – to the general rule that the denial of summary judgment is not final.  Finally, the courts of appeals lack the statutory authority to review the denial of summary judgment after trial when the moving party could have appealed immediately but did not.  Once the thirty-day period for appealing summary judgment orders that qualify as “collateral” has expired, she explains, “the opportunity to appeal that decision is extinguished, and the trial proceedings that ensue supersede the summary-judgment proceedings.”

In their brief on the merits, Bright and Jordan counter with a very different view of the case.  They propose what they describe as a “clear-cut rule”:  if a party moves for summary judgment on an issue, the denial of that motion will “merge” into the final judgment and be preserved for review on appeal as long as the trial on the merits does not moot the defense.  First, they explain, the court of appeals had jurisdiction in their case because they were appealing from a final judgment, and they had adequately preserved their qualified immunity defense – which was not mooted by the trial – for review.  Second, the courts of appeals agree that they were permitted, but not required, to appeal the order denying their motion for summary judgment.

Nor should the Court give any credence, they emphasize, to Ortiz’s argument that they should have filed a Rule 50(b) motion after the jury’s verdict:  even if this issue was not waived (which, they contend, it was because it was not raised below or in the question presented), Ortiz “fundamentally misunderstands the nature of Rule 50,” which is primarily directed at challenging the sufficiency of the evidence.

Recommended Citation: Amy Howe, Argument preview: appealing a summary judgment denial following a full trial, SCOTUSblog (Nov. 1, 2010, 8:38 AM),