The Lawletter Vol 35 No 6, April 15, 2011
Under the Federal Rules of Civil Procedure, may a party appeal an order denying summary judgment after a full trial on the merits? In Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011), the U.S. Supreme Court, addressing a split among the circuits, unanimously held that the answer is "no." Compare Black v. J.I. Case Co., 22 F.3d 568, 570‑71 (5th Cir. 1994) (declining to review denial of summary judgment after trial on the merits), and Price v. Kramer, 200 F.3d 1237, 1243‑44 (9th Cir.) (finding no exception to the rule against reviewing denial of summary judgment following a trial on the merits for cases in which the summary judgment rejected the assertion of qualified immunity), cert. denied, 531 U.S. 816 (2000), with Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999) (holding that the denial of summary judgment based on qualified immunity was reviewable after a trial on the merits), and Ortiz v. Jordan, 316 F. App'x 449, 453 (6th Cir. 2009) (case below). The issue in Ortiz arose in the context of the assertion of a qualified immunity defense by defendant prison employees in a suit brought by a former inmate pursuant to 42 U.S.C. § 1983, alleging that the officials had failed to protect her from a second sexual assault by a corrections officer after having been informed that he had assaulted her on a prior occasion. However, the Court's ruling on the procedural issue was not limited to civil rights suits or the assertion of a qualified immunity defense.
In Ortiz, the defendants moved for summary judgment on the basis of qualified immunity, i.e., their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The court below denied the motion on the ground that there existed genuine issues of material fact precluding a finding of immunity. Following a trial on the merits and a judgment in favor of the plaintiff, the two officers appealed. While acknowledging that courts do not normally review the denial of a summary judgment motion after a trial on the merits, the Sixth Circuit recognized an exception for a denial of summary judgment based on qualified immunity, apparently on the ground that the existence of qualified immunity is a question of law.
Writing for the Court, Justice Ginsberg acknowledged that qualified immunity can be a pure question of law, and, in such cases, interlocutory appeal is available to review a denial of a motion for summary judgment. However, the district court denied summary judgment because there was a factual dispute, and, thus, an interlocutory appeal would have been improper. In fact, the defendants did not seek interlocutory review, perhaps in recognition of the fact that the denial was not based on a pure question of law and thus was not appealable. To the extent that the defendants wished to argue on appeal that the plaintiff had not proved her case at trial, their proper recourse would have been to file a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). Unfortunately, the defendants filed no such motion, relying instead on their motion for summary judgment. However, challenges to the sufficiency of the evidence are not preserved for appellate review by a summary judgment motion alone. The failure to renew their challenge under Rule 50(b) meant that the circuit court had no authority to review the sufficiency of the evidence. In a concurring opinion joined by Justices Scalia and Kennedy, Justice Thomas wrote that because the Sixth Circuit's review of the denial of the motion for summary judgment was error, it was unnecessary for the Court to address the applicability of Rule 50(b).