562 U.S. 180

ORTIZ v . JORDAN etal.

certiorari to the united states court of appeals for the sixth circuit

No. 09737.Argued November 1, 2010Decided January 24, 2011

Petitioner Ortiz, a former inmate in an Ohio reformatory, brought a civil rights action under 42 U.S.C. 1983 seeking a judgment for damages against superintending prison officers. On two consecutive nights during her incarceration, Ortiz stated, she was sexually assaulted by a corrections officer. Although she promptly reported the first assault, she further alleged, respondent Jordan, a case manager in her living unit, did nothing to ward off the second sexual assault, despite Jordans awareness of the substantial risk of that occurrence. Ortiz further charged that respondent Bright, a prison investigator, retaliated against Ortiz for her accusations by placing her, shackled and handcuffed, in solitary confinement in a cell without adequate heat, clothing, bedding, or blankets. The responses of both officers, she said, violated her right, safeguarded by the Eighth and Fourteenth Amendment s, to reasonable protection from violence while in custody.

Jordan and Bright moved for summary judgment on pleas of qualified immunity. The District Court, noting factual disputes material to Ortizs claims and the officers qualified immunity defenses, denied the summary judgment motion. The officers did not appeal that ruling. The case proceeded to trial, and the jury returned a verdict against Jordan and Bright. They sought judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50(a), both at the close of Ortizs evidence and at the close of their own presentation. But they did not contest the jurys liability finding by renewing, under Rule 50(b), their request for judgment as a matter of law. Nor did they request a new trial under Rule 59(a). The District Court entered judgment for Ortiz. On appeal, Jordan and Bright urged, inter alia , that the District Court should have granted their motion for summary judgment based on their qualified immunity defense. The Sixth Circuit agreed and reversed the judgment entered on the jurys verdict, holding that both defendants were sheltered from Ortizs suit by qualified immunity.

Held: A party may not appeal a denial of summary judgment after a district court has conducted a full trial on the merits. A qualified immunity plea, not upheld at the summary judgment stage, may be pursued at trial, but at that stage, the plea must be evaluated in light of the character and quality of the evidence received in court. Ordinarily, orders denying summary judgment are interlocutory and do not qualify as final decisions subject to appeal under 28 U.S.C. 1291. Because a qualified immunity plea can spare an official not only from liability but from trial, this Court has recognized a limited exception to the categorization of summary judgment denials as nonappealable orders. Mitchell v. Forsyth , 472 U.S. 511. The exception permits an immediate appeal when summary judgment is denied to a defendant who urges that qualified immunity shelters her from suit. Id ., at 527. Such an immediate appeal is not available, however, when the district court determines that factual issues genuinely in dispute preclude summary adjudication. Johnson v. Jones , 515 U.S. 304. Here, Jordan and Bright sought no immediate appeal from the denial of their summary judgment motion. Nor did they avail themselves of Rule 50(b), which permits the entry of judgment, postverdict, for the verdict loser if the court finds the evidence legally insufficient to sustain the verdict. Absent such a motion, an appellate court is powerless to review the sufficiency of the evidence after trial. Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. , 546 U.S. 394. This Court need not address the officers argument that a qualified immunity plea raising a purely legal issue is preserved for appeal by an unsuccessful summary judgment motion even if the plea is not reiterated in a Rule 50(b) motion. Cases fitting that bill typically involve disputes about the substance and clarity of pre-existing law. In this case, however, what was controverted was not the pre-existing law, but the facts that could render Jordan and Bright answerable under 1983, e.g. , whether Jordan was adequately informed, after the first assault, of the assailants identity and of Ortizs fear of a further assault. Because the dispositive facts were disputed, the officers qualified immunity defenses did not present neat abstract issues of law. Johnson , 515 U.S., at 317. To the extent that Jordan and Bright urge Ortiz has not proved her case, they were, by their own account, obliged to raise that sufficiency-of-the-evidence issue by postverdict motion for judgment as a matter of law under Rule 50(b). They did not do so. The Sixth Circuit, therefore, had no warrant to upset the jurys decision on their liability. Pp.611.

316 Fed. Appx. 449, reversed and remanded.

Ginsburg, J., delivered the opinion of the Court, in which Roberts, C.J., and Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia and Kennedy, JJ., joined.


on writ of certiorari to the united states court of appeals for the sixth circuit

[January 24, 2011]

Justice Thomas , with whom Justice Scalia and Justice Kennedy join, concurring in the judgment.

We granted certiorari to decide the narrow question whether a party may appeal an order denying summary judgment after a full trial on the merits. I agree with the Court that the answer is no. See ante , at 23. The Court also reaches beyond that question, however, to address the effect of Jordan and Brights failure to renew their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). I would limit our decision to the question presented and remand for consideration of any additional issues.

As the Court concludes, a party ordinarily cannot appeal an order denying summary judgment after a full trial on the merits. See ante , at 78. Most such orders are not appealable at all, because they neither qualify as final decisions capable of appeal under 28 U.S.C. 1291 nor come within the narrow class of appealable interlocutory orders under 1292(a)(1). And for those that are appealable, * the time for filing an appeal will usually have run by the conclusion of the trial. See 2107(a) (providing that a notice of appeal in a civil case generally must be filed within thirty days after entry of the relevant judgment or order); Fed. Rule App. Proc. 4(a)(1)(A).

This case is the ordinary case. Even if the order denying summary judgment qualified under the collateral order doctrine as an appealable final decision under 1291, the time for filing that appeal expired long before trial. Ante , at 78. The Court of Appeals therefore lacked jurisdiction to review the order. I would reverse the judgment on that ground alone and remand for further proceedings.

The majority proceeds to consider the additional question whether Jordan and Brights failure to file a Rule 50(b) motion deprived the Court of Appeals of the powe[r] to review the sufficiency of the trial evidence. See ante , at 34, 8 (quoting Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. , 546 U.S. 394, 405 (2006) ). The Court does so because it concludes that the Court of Appeals did not confine itself to the pretrial record and instead reviewed the trial evidence. Ante, at 3.

I do not think it necessary to reach beyond the question presented. It is clear from the opinion that the appeals court reviewed the order denying summary judgment, and that was error. The Court of Appeals explained that [a]lthough courts normally do not review the denial of a summary judgment motion after a trial on the merits, this case is an exception to th[at] rule. 316 Fed. Appx. 449, 453 (CA6 2009). And to support that conclusion, the court cited Goff v. Bise , 173 F.3d 1068 (1999), in which the Eighth Circuit reviewed an order denying summary judgment. Finally, the Court of Appeals equated its review in this case to the review of an interlocutory appea[l] of qualified immunity, which suggests that the court saw itself as reviewing the interlocutory order denying summary judgment. 316 Fed. Appx., at 453. Whether, in erroneously reviewing the order denying summary judgment, the Court of Appeals considered the pretrial or full trial record is beside the point.

I also think it unwise to reach the Rule 50 issue and the questions that follow. Ortizs opening brief at the merits stage focused on the question presentedwhether the Court of Appeals lacked jurisdiction to review an order denying summary judgment. It was not until Jordan and Brights response brief in this Court, in which they argued that they had not actually appealed the order denying summary judgment, that the Rule 50 issues were addressed at any length. This Court normally proceeds more cautiously. Moreover, the Court of Appeals did not address these issues at all, and we are ordinarily a court of final review and not first view. Adarand Constructors, Inc. v. Mineta , 534 U.S. 103, 110 (2001) (per curiam) (internal quotation marks omitted). This seems a good rule to follow in a case like this, which raises difficult and far-reaching questions of civil procedure.

For these reasons, I would resolve only the question on which we granted certiorari. I concur in the judgment.


* See Mitchell v. Forsyth, 472 U.S. 511, 524530 (1985) (holding that some orders denying summary judgment constitute final decisions under the collateral order doctrine).