On January 24, 2011, the U.S. Supreme Court unanimously held in Ortiz v. Jordan that a party may not appeal an order denying summary judgment after a full trial on the merits and reversed the Sixth Circuit’s review of such an order. In doing so, the Court concluded that orders denying summary judgment on qualified immunity grounds were no exception to the general rule that summary judgment denials cannot be reviewed after trial. The Court also held that, to preserve appellate review of the sufficiency of the evidence at trial, a party must make a postverdict motion for judgment as a matter of law under Federal Rule of Civil Procedure Rule 50(b). Justice Ginsburg wrote for a six-justice majority, and Justices Thomas, Scalia, and Kennedy concurred in the judgment. In this advisory, the authors summarize Ortiz and identify important ramifications of the Court’s decision.
Michelle Ortiz brought suit under 42 U.S.C. § 1983 against several state officials after she was sexually assaulted by a state corrections officer. Defendants Paula Jordan, a case manager at the Ohio Reformatory for Women, and Rebecca Bright, an investigator at the reformatory, moved for summary judgment on qualified immunity grounds. The district court denied summary judgment, and Jordan and Bright did not pursue an interlocutory appeal on the qualified immunity issue. The case proceeded to a jury trial.
After the close of Ortiz’s case in chief, Jordan and Bright orally moved for judgment as a matter of law under Rule 50(a). They renewed that motion at the close of all of the evidence. The district court denied both motions and submitted the case to the jury. The jury found both Jordan and Bright liable, awarding compensatory and punitive damages. The district court entered judgment for Ortiz based on the jury’s verdict. Jordan and Bright did not renew their request for judgment as a matter of law under Rule 50(b).
Jordan and Bright appealed both the judgment and the earlier order denying summary judgment to the Sixth Circuit. There, in an unpublished opinion, a two-judge majority acknowledged that courts of appeals do not normally review denials of summary judgment after trials on the merits. However, the majority recognized an exception for orders denying summary judgment on the issue of qualified immunity. The majority then reversed the district court’s order denying summary judgment on qualified immunity, holding that neither Jordan nor Bright had violated Ortiz’s constitutional rights. The Sixth Circuit’s decision further reinforced an existing Circuit split concerning appeals of denials of summary judgment based on qualified immunity: at least the Sixth and Eighth Circuits allowed such appeals, while the Fifth and Ninth Circuits did not.
The Supreme Court granted certiorari to resolve the Circuit split on the question of whether a party may appeal an order denying summary judgment after a full trial on the merits. Justice Ginsburg, delivering the opinion of the Court, succinctly wrote: “Our answer is no.”
The Court held that the Sixth Circuit should not have reviewed the trial court’s order denying summary judgment, because such orders are “by their terms interlocutory.” After trial, “the full record developed in court supersedes the record existing at the time of the summary judgment motion.”
The majority then noted that, while the Sixth Circuit purported to review the order denying summary judgment, it also reviewed qualified evidence presented only at trial. The Court determined that this analysis was inappropriate. It held that the Sixth Circuit had “no warrant to upset the jury’s decision on the officials’ liability” because neither Bright nor Jordan had renewed their motion for judgment as a matter of law under Rule 50(b).
The Court declined to address Jordan’s and Bright’s argument that an order denying summary judgment based on a “purely legal issue” that would have been appropriate for interlocutory review under the collateral order doctrine – for example, that the law was clearly established when the defendants acted for the purposes of qualified immunity – should remain reviewable even after a full trial. The Court said this argument was inapposite to the order in this case, which had denied summary judgment because disputed facts existed as to the officials’ immunity.
Justice Thomas, joined by Justices Scalia and Kennedy, concurred in the judgment but concluded that the majority should not have reached the Rule 50(b) question, which they viewed as “beside the point.”
The Ortiz decision highlights the Court’s preference for jury verdicts and reinforces that proper procedural steps must be followed in order to challenge them. When a party’s motion for summary judgment is denied, counsel should carefully consider whether that interlocutory order is based on factual or legal grounds. If the former, no appeal is available and counsel must carefully preserve appellate review of the sufficiency of the evidence presented at trial through Rule 50(a) and Rule 50(b) motions. If the unsuccessful summary judgment motion presented a “purely legal issue” which could be appealed as a “final decision” under the collateral order doctrine, Ortiz leaves open the question of whether the order must be immediately appealed, or whether appellate review will remain available following the trial.