Post-trial summary judgment appeal considered

In a technical case involving tricky civil procedure timing rules, the U.S. Supreme Court heard arguments over whether a denial of a summary judgment motion can be appealed after a trial verdict.

Ortiz v. Jordan could have a significant impact in civil cases against government officials who claim qualified immunity.

The plaintiff, Michelle Ortiz, filed suit claiming civil rights and constitutional violations against two correctional officers. Ortiz claimed she was sexually assaulted while serving a one-year sentence at an Ohio correctional facility.

She claims she reported the incident to the defendants — a prison case manager and investigator — but they failed to take adequate steps to protect her, instead ordering her to be placed in solitary confinement in retaliation for reporting the incident. The next night Ortiz was sexually assaulted a second time.

The defendants moved for summary judgment, citing qualified immunity. The motion was denied, the defendants did not file an interlocutory appeal and the case went to trial.

At the close of the plaintiff’s case-in-chief, the defendants moved for judgment as a matter of law under Federal Rule of Civil Procedure Rule 50(a) and were denied. The plaintiff was ultimately awarded $300,000 in compensatory and $350,000 in punitive damages.

The defendants did not file a post-judgment motion for judgment as a matter of law under Rule 50(b), nor did they move for a new trial. Instead, they appealed the court’s denial of summary judgment three years before the verdict.

The Sixth Circuit reversed the denial of summary judgment, ruling that the appeal was properly before the court, and that the defendants were entitled to qualified immunity.

Ortiz petitioned the Supreme Court for certiorari, asking the justices to decide whether parties may appeal summary judgment motions after trial if they failed to do so in an interlocutory appeal. The Court granted the petition.

Summary judgment denial not reviewable?

David E. Mills, a solo practitioner in Cleveland, argued on Ortiz’s behalf that the Sixth Circuit not only erred by taking up the summary judgment review, but also in ruling on the issue of qualified immunity since such a determination is inherently fact-based.

“Denial of summary judgment is not reviewable on appeal after trial, especially where the decision depends on whether the evidence on the merits of the claim is sufficient to cross the legal line for liability,” Mills said.

Justice Samuel Alito wondered if the facts and prosecutorial history of the case actually matched the question presented.

“This is what troubles me about this case,” Justice Alito said. “The Sixth Circuit referred to summary judgment in its opinion [but] it seems to me the Sixth Circuit actually reviewed the evidence at trial and determined that the defendants were entitled to judgment as a matter of law. So I don’t know if this case actually presents the question on which cert was granted.”

“I think that you are exactly right,” Mills said. “I think that highlights the fundamental problem of reviewing summary judgment after the trial.”

Chief Justice John G. Roberts Jr. questioned Mills’s assertion that qualified immunity rulings are so inherently fact-based as to be improper for summary judgment consideration.

“You can have a collateral order appeal of denial of summary judgment,” Chief Justice Roberts said. “In other words, you can consider qualified immunity without knowing how the facts are going to come out at trial, which is why we allow you to have an appeal before trial.”

“The court still has to understand, if it’s going to enter judgment, what the conduct was,” Mills said.
Justice Antonin Scalia disagreed: “It doesn’t have to know what [the conduct] was. It assumes it to be what the plaintiff claims it was. … It’s never going to be any better for the plaintiff than what you assumed at the summary judgment stage.”

Ohio Solicitor General Benjamin C. Mizer argued it was proper for the Sixth Circuit to review the entire trial record, including the issue of qualified immunity, which was properly raised and preserved.

“I don’t think its word choice was perfectly clear, but I think other phrases in the … opinion make clearer that what it was doing was viewing the full trial record,” Mizer said.

Mizer said the defendants would have had to appeal the summary judgment in an interlocutory appeal based only on issues of pure law, not issues of fact. But Chief Justice Roberts expressed concern about a ruling creating such a distinction.

“[It is] already very difficult and complicated to sort out,” Chief Justice Roberts said. “Wouldn’t it be easier if we just said, ‘Here’s the rule from now on: you’ve got to renew them all in a [Rule] 50(b) motion?’”

“[It] would create even more difficulties,” Mizer said.

A ruling is expected later this term.