Ortiz v. Jordan

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ORTIZ v. JORDAN ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 09–737. Argued November 1, 2010—Decided 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 as

saulted 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 Jordan’s 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 Four

teenth Amendments, 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 Ortiz’s claims and the officers’ qualified immunity de

fenses, 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 Ortiz’s evidence and at the close of their own presenta

tion. But they did not contest the jury’s 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 en

tered judgment for Ortiz. On appeal, Jordan and Bright urged, inter

alia, that the District Court should have granted their motion for

2 ORTIZ v. JORDAN

Syllabus

summary judgment based on their qualified immunity defense. The

Sixth Circuit agreed and reversed the judgment entered on the jury’s

verdict, holding that both defendants were sheltered from Ortiz’s 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 non

appealable orders. Mitchell v. Forsyth, 472 U. S. 511, 525–526. 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 genu

inely in dispute preclude summary adjudication. Johnson v. Jones,

515 U. S. 304, 313. 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 judg

ment, 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, 405. This Court need not address the officers’ argument

that a qualified immunity plea raising a “purely legal” issue is pre

served 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 assailant’s identity and of

Ortiz’s 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 ex

tent 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 jury’s decision on their liability. Pp. 6–

Cite as: 562 U. S. ____ (2011) 3

Syllabus

11.

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.

Cite as: 562 U. S. ____ (2011) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–737

_________________

MICHELLE ORTIZ, PETITIONER v. PAULA JORDAN

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[January 24, 2011]

JUSTICE GINSBURG delivered the opinion of the Court.

We address in this case a procedural issue arising in a

civil rights action brought under 42 U. S. C. §1983 by

Michelle Ortiz, a former inmate at the Ohio Reformatory

for Women. Plaintiff below, petitioner here, Ortiz filed a

complaint in federal court stating key facts on which she

based claims for damages against superintending prison

officers. On two consecutive nights during her one-year

incarceration, Ortiz stated, she was sexually assaulted by

a corrections officer. Although she promptly reported the

first incident, she further alleged, prison authorities took

no measures to protect her against the second assault.

After that assault, Ortiz charged, and in retaliation for

accounts she gave of the two episodes, prison officials

placed her, shackled and handcuffed, in solitary confine

ment in a cell without adequate heat, clothing, bedding, or

blankets. The treatment to which she was exposed, Ortiz

claimed, violated her right, safeguarded by the Eighth and

Fourteenth Amendments, to reasonable protection from

violence while in custody.

Principal defendants in the suit, Paula Jordan, a case

2 ORTIZ v. JORDAN

Opinion of the Court

manager at Ortiz’s living unit, and Rebecca Bright, a

prison investigator, moved for summary judgment on their

pleas of “qualified immunity,” a defense that shields offi

cials from suit if their conduct “d[id] not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzger

ald, 457 U. S. 800, 818 (1982). Finding that the qualified

immunity defense turned on material facts genuinely in

dispute, see Fed. Rule Civ. Proc. 56(a), the District Judge

denied summary judgment. Ortiz v. Voinovich, 211

F. Supp. 2d 917, 923–930 (SD Ohio 2002).

The case then proceeded to trial, and the jury returned

verdicts for Ortiz against both Jordan and Bright. The

two officers appealed to the United States Court of Ap

peals for the Sixth Circuit, targeting, inter alia, the denial

of their pretrial motion for summary judgment. “[C]ourts

normally do not review the denial of a summary judgment

motion after a trial on the merits,” the Court of Appeals

recognized. 316 Fed. Appx. 449, 453 (2009). Nevertheless,

the Court continued, “denial of summary judgment based

on qualified immunity is an exception to this rule.” Ibid.

Reversing the judgment entered on the jury’s verdict, the

appeals court held that both defendants were sheltered

from Ortiz’s suit by qualified immunity.

We granted review, 559 U. S. ___ (2010), to decide a

threshold question on which the Circuits are split: May a

party, as the Sixth Circuit believed, appeal an order deny

ing summary judgment after a full trial on the merits?1

Our answer is no. The order retains its interlocutory

——————

1 Compare, e.g., Black v. J. I. Case Co., 22 F. 3d 568, 570–571 (CA5

1994) (declining to review denial of summary judgment after trial);

Price v. Kramer, 200 F. 3d 1237, 1243–1244 (CA9 2000) (no exception

where summary judgment rejected assertion of qualified immunity),

with Goff v. Bise, 173 F. 3d 1068, 1072 (CA8 1999) (denial of summary

judgment based on qualified immunity reviewable after trial on the

merits); 316 Fed. Appx. 449, 453 (CA6 2009) (case below) (same).

Cite as: 562 U. S. ____ (2011) 3

Opinion of the Court

character as simply a step along the route to final judg

ment. See Cohen v. Beneficial Industrial Loan Corp., 337

U. S. 541, 546 (1949). Once the case proceeds to trial, the

full record developed in court supersedes the record exist

ing at the time of the summary judgment motion. A quali

fied immunity defense, of course, does not vanish when a

district court declines to rule on the plea summarily. The

plea remains available to the defending officials at trial;

but at that stage, the defense must be evaluated in light of

the character and quality of the evidence received in court.

When summary judgment is sought on a qualified im

munity defense, the court inquires whether the party

opposing the motion has raised any triable issue barring

summary adjudication. “[O]nce trial has been had,” how

ever, “the availability of official immunity should be de

termined by the trial record, not the pleadings nor the

summary judgment record.” 15A C. Wright, A. Miller, &

E. Cooper, Federal Practice & Procedure §3914.10, p. 684

(2d ed. 1992 and Supp. 2010). After trial, if defendants

continue to urge qualified immunity, the decisive question,

ordinarily, is whether the evidence favoring the party

seeking relief is legally sufficient to overcome the defense.

See Fed. Rule Civ. Proc. 50(a), (b) (stating conditions on

which judgment may be granted as a matter of law).

In the case before us, the Court of Appeals, although

purporting to review the District Court’s denial of the

prison officials’ pretrial summary-judgment motion, 316

Fed. Appx., at 453, several times pointed to evidence

presented only at the trial stage of the proceedings, see

id., at 453–454. The appeals court erred, but not fatally,

by incorrectly placing its ruling under a summary

judgment headline. Its judgment was infirm, however,

because Jordan’s and Bright’s failure to renew their mo

tion for judgment as a matter of law under Federal Rule of

Civil Procedure 50(b) left the appellate forum with no

warrant to reject the appraisal of the evidence by “the

4 ORTIZ v. JORDAN

Opinion of the Court

judge who saw and heard the witnesses and ha[d] the feel

of the case which no appellate printed transcript can

impart.” Cone v. West Virginia Pulp & Paper Co., 330

U. S. 212, 216 (1947).

I

Michelle Ortiz, serving a sentence for aggravated as

sault against her husband,2 maintained that she was

sexually assaulted on consecutive days by Corrections

Officer Douglas Schultz. On Friday, November 8, 1996,

Ortiz recounted, Schultz walked up behind her in the

washroom of her living quarters and grabbed one of her

breasts.3 Ortiz fended off the assault, but Schultz re

turned later that day and threatened to “see [her] tomor

row,” Tr. 36.

The next day, Ortiz described the incident to Jordan.

After assuring Ortiz that “no one has the right to touch

you,” 316 Fed. Appx., at 451 (internal quotation marks

omitted), Jordan told Ortiz that Schultz had been reas

signed to another correctional facility and was serving his

last day at the reformatory. Ortiz could file a written

complaint, Jordan noted. She suggested, however, that

Ortiz not do so, in view of Schultz’s imminent departure.

Jordan advised Ortiz that she “always ha[d] the right to

defend [her]self,” Tr. 43, and counseled her to “ ‘hang out

with [her] friends’ for the rest of the day so that Schultz

would not have the chance to be alone with her,” 316 Fed.

Appx., at 451 (alteration in original).

The day of her conversation with Ortiz, Jordan wrote an

incident report describing her version of the encounter. In

that account, Jordan stated that Ortiz had refused to

——————

2 Ortiz maintained in her criminal prosecution that she acted in re

taliation for multiple incidents of domestic violence to which she had

been subjected over a span of several years. 316 Fed. Appx., at 450.

3 The accounts of the episodes-in-suit described here recite facts the

jury reasonably could have found from the testimony presented at trial.

Cite as: 562 U. S. ____ (2011) 5

Opinion of the Court

name her assailant or provide any other information about

the assault. Jordan did not immediately notify her supe

riors of the assault Ortiz reported and Ortiz’s consequent

fears about her safety. Taking the incident report home in

her workbag, Jordan submitted it upon her return to work

two days later.

Ortiz endeavored to follow Jordan’s advice about staying

in the company of friends. But later in the day, feeling ill,

she returned to her room and fell asleep. Three other

inmates were in the room when Ortiz went to sleep. They

were gone when she awoke to find Schultz standing over

her, one hand fondling her left breast, the fingers of the

other hand inside her underwear penetrating her vagina.

Bright’s investigation began two days after the second

assault. During its course, Bright placed Ortiz in solitary

confinement. Ortiz maintained that Bright isolated her in

retaliation for her accusations against Schultz. Bright,

however, testified that she segregated Ortiz because Ortiz

continued to discuss the investigation with other inmates,

disobeying Bright’s repeated instructions to refrain from

speaking about it.

In her §1983 action, Ortiz claimed that Jordan did

nothing to ward off Schultz’s second sexual assault, de

spite Jordan’s awareness of the substantial risk of that

occurrence. Bright, Ortiz charged, retaliated against her

because she resisted Bright’s efforts to induce her to re

tract her accounts of Schultz’s assaults. (Schultz, having

resigned from state employment, could not be found and

served with process.) The District Court, noting multiple

factual disputes material to Ortiz’s claims and the officers’

defense of qualified immunity, denied summary judgment

to Jordan and Bright, 211 F. Supp. 2d, at 923–930;4 nei

——————

4 As to Jordan, the District Court determined, inter alia, that “a jury

could reasonably find . . . that Ortiz did inform Jordan of Schultz’s

identity,” and that “Ortiz made Jordan aware that [Ortiz] reasonably

6 ORTIZ v. JORDAN

Opinion of the Court

ther defendant appealed the District Court’s denial of

summary judgment.

The case proceeded to trial, and a jury returned a ver

dict of $350,000 in compensatory and punitive damages

against Jordan and $275,000 against Bright. Jordan and

Bright sought judgment as a matter of law, pursuant to

Rule 50(a), both at the close of Ortiz’s evidence and at the

close of their own presentation. But they did not contest

the jury’s 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 in accordance with the

jury’s verdict.

On appeal, Jordan and Bright urged both that the Dis

trict Court should have granted them summary judgment

on their defense of qualified immunity and that the ver

dict was “against the weight of the evidence.” Brief for

Defendants-Appellants in No. 06–3627 (CA6), pp. 21, 26.

Appraising the parties’ evidence under a de novo standard

of review, the Court of Appeals “reverse[d] the denial of

qualified immunity to both Bright and Jordan.” 316 Fed.

Appx., at 455.5

We granted certiorari to resolve the conflict among the

Circuits as to whether a party may appeal a denial of

summary judgment after a district court has conducted a

full trial on the merits. See n. 1, supra.

——————

feared a further sexual attack.” 211 F. Supp. 2d, at 925. Concerning

Bright, the Court noted that “[a] jury could reasonably find that

Bright[’s] . . . purported reason for placing Ortiz in security control was

pretextual.” Id., at 928.

5 Judge Daughtrey dissented; in her view, the strength of the evi

dence against Jordan and Bright amply supported the jury’s verdict.

316 Fed. Appx., at 456–457. Quoting Kiphart v. Saturn Corp., 251

F. 3d 573, 581 (CA6 2001), she observed that appellate courts “do not

weigh the evidence, evaluate the credibility of witnesses or substitute

our own judgment for that of the jury.” 316 Fed. Appx., at 457.

Cite as: 562 U. S. ____ (2011) 7

Opinion of the Court

II

The jurisdiction of a Court of Appeals under 28 U. S. C.

§1291 extends only to “appeals from . . . final decisions of

the district courts.” Ordinarily, orders denying summary

judgment do not qualify as “final decisions” subject to

appeal. Summary judgment must be denied when the

court of first instance determines that a “genuine dispute

as to [a] material fact” precludes immediate entry of

judgment as a matter of law. Fed. Rule Civ. Proc. 56(a).

Such rulings, we have observed, are “by their terms inter

locutory.” Liberty Mut. Ins. Co. v. Wetzel, 424 U. S. 737,

744 (1976).

Because a plea of qualified immunity can spare an

official not only from liability but from trial, we have

recognized a limited exception to the categorization of

summary judgment denials as nonappealable orders.

Mitchell v. Forsyth, 472 U. S. 511, 525–526 (1985). When

summary judgment is denied to a defendant who urges

that qualified immunity shelters her from suit, the court’s

order “finally and conclusively [disposes of] the defen

dant’s claim of right not to stand trial.” Id., at 527 (em

phasis deleted). Therefore, Mitchell held, an immediate

appeal may be pursued. Ibid.

We clarified in Johnson v. Jones, 515 U. S. 304 (1995),

that immediate appeal from the denial of summary judg

ment on a qualified immunity plea is available when the

appeal presents a “purely legal issue,” illustratively, the

determination of “what law was ‘clearly established’ ” at

the time the defendant acted. Id., at 313. However, in

stant appeal is not available, Johnson held, when the

district court determines that factual issues genuinely in

dispute preclude summary adjudication. Ibid.

Jordan and Bright sought no immediate appeal from the

denial of their motion for summary judgment. In light of

Johnson, that abstinence is unsurprising. Moreover, even

had instant appellate review been open to them, the time

8 ORTIZ v. JORDAN

Opinion of the Court

to seek that review expired well in advance of trial. See

Fed. Rule App. Proc. 4(a)(1)(A) (notice of appeal must

generally be filed “within 30 days after the judgment or

order appealed from”). Nor did they avail themselves of

Rule 50(b), which permits the entry, postverdict, of judg

ment for the verdict loser if the court finds that the evi

dence was legally insufficient to sustain the verdict. See

Fed. Rule Civ. Proc. 50(a), (b). Absent such a motion, we

have repeatedly held, 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, 405 (2006); see Cone, 330 U. S., at 218.6

——————

6 Jordanand Bright contend that their failure to file a Rule 50(b)

motion cannot be the basis for overturning the judgment of the Court of

Appeals. Because Ortiz presented no argument about the absence of a

Rule 50(b) motion in her brief to the Sixth Circuit or in her petition for

certiorari, Jordan and Bright argue, she has forfeited the objection.

Jordan and Bright are not well positioned to make this argument.

They did not suggest that Ortiz had forfeited her Rule 50(b) objection,

or argue that such an objection is forfeitable, until their merits brief to

this Court. Ordinarily we do not consider “a nonjurisdictional argu

ment not raised in a respondent’s brief in opposition to a petition.”

Baldwin v. Reese, 541 U. S. 27, 34 (2004) (internal quotation marks

omitted).

In any case, we do not see how Ortiz can be held to have forfeited

her Rule 50(b) objection. The arguments Jordan and Bright made in

the Court of Appeals invited no such objection. Jordan and Bright

urged on appeal that the jury’s verdict was “against the weight of the

evidence.” Brief for Defendants-Appellants in No. 06-3627 (CA6), pp.

21–43. A plea that a verdict is “against the weight of the evidence,” of

course, is not equivalent to a plea that the evidence submitted at trial

was insufficient to warrant submission of the case to the jury. 11 C.

Wright, A. Miller, & E. Cooper, Federal Practice & Procedure §2806,

pp. 65–67 (2d ed. 1995 and Supp. 2010). A determination that a verdict

is against the weight of the evidence may gain a new trial for the

verdict loser, but never a final judgment in that party’s favor. Mont

gomery Ward & Co. v. Duncan, 311 U. S. 243, 250–251 (1940). Ortiz

objected, accordingly, that Jordan and Bright had not asked the Dis

trict Court for a new trial and were therefore “bar[red] [from] appeal on

this ground.” Brief for Plaintiff-Appellee in No. 06–3627 (CA6), p. 23.

Cite as: 562 U. S. ____ (2011) 9

Opinion of the Court

“[Q]uestions going to the sufficiency of the evidence are

not preserved for appellate review by a summary judg

ment motion alone,” Jordan and Bright acknowledge;

rather, challenges of that order “must be renewed post

trial under Rule 50.” Brief for Respondents 11. Jordan

and Bright insist, however, in defense of the Sixth Cir

cuit’s judgment, that sufficiency of the evidence is not

what is at stake in this case. A qualified immunity plea

raising an issue of a “purely legal nature,” they urge, ibid.,

is preserved for appeal by an unsuccessful motion for

summary judgment, and need not be brought up again

under Rule 50(b). Id., at 11–12 (citing as pathmarking

Rekhi v. Wildwood Indus., Inc., 61 F. 3d 1313, 1318 (CA7

1995)). Unlike an “evidence sufficiency” claim that neces

sarily “hinge[s] on the facts adduced at trial,” they main

tain, a purely legal issue can be resolved “with reference

only to undisputed facts.” Brief for Respondents 16 (quot

ing Mitchell, 472 U. S., at 530, n. 10).

We need not address this argument, for the officials’

claims of qualified immunity hardly present “purely legal”

issues capable of resolution “with reference only to undis

puted facts.” Cases fitting that bill typically involve con

tests not about what occurred, or why an action was taken

or omitted, but disputes about the substance and clarity of

pre-existing law. See Behrens v. Pelletier, 516 U. S. 299,

313 (1996); Johnson, 515 U. S, at 317.

Here, however, the pre-existing law was not in contro

versy. See Farmer v. Brennan, 511 U. S. 825, 834, 847

(1994) (prison official may be held liable for “deliberate

indifference” to a prisoner’s Eighth Amendment right to

protection against violence while in custody if the official

“knows that [the] inmat[e] face[s] a substantial risk of

serious harm and disregards that risk by failing to take

——————

Ortiz thus responded altogether appropriately to the arguments Jordan

and Bright made.

10 ORTIZ v. JORDAN

Opinion of the Court

reasonable measures to abate it” (internal quotation

marks omitted)); Crawford-El v. Britton, 523 U. S. 574,

592 (1998) (First Amendment shields prisoners from

“retaliation for protected speech”).7 What was contro

verted, instead, were the facts that could render Jordan

and Bright answerable for crossing a constitutional line.

Disputed facts relevant to resolving the officials’ immunity

pleas included: Was Jordan adequately informed, after the

first assault, of the identity of the assailant, see App. 4,

and of Ortiz’s fear of a further assault? What, if anything,

could Jordan have done to distance Ortiz from the assail

ant, thereby insulating her against a second assault? See

id., at 4–5.8 Did Bright place and retain Ortiz in solitary

confinement as a retaliatory measure or as a control

needed to safeguard the integrity of the investigation? 9

In sum, the qualified immunity defenses asserted by

Jordan and Bright do not present “neat abstract issues of

law.” See Johnson, 515 U. S., at 317 (quoting 15A C.

——————

7 The Court of Appeals held that Ortiz’s complaint had not properly

tied her claim against Bright to the First Amendment. 316 Fed. Appx.,

at 455. “When an issue not raised by the pleadings is tried by the

parties’ express or implied consent,” however, “it must be treated in all

respects as if raised in the pleadings.” Fed. Rule Civ. Proc. 15(b)(2).

Bright, like the District Court, recognized the First Amendment inter

ests at stake in Ortiz’s claim against her. See App. 11 (District Court,

in ruling on Rule 50(a) motion, inquired into Bright’s authority to

“regulat[e] speech of inmates”); id., at 20 (Bright’s counsel argued

that Ortiz’s segregation “would not have had a chilling effect” on her

speech).

8 Relevant to that matter, Bright testified at trial that, had Jordan

“reported the first incident immediately, ‘the proper people would

have taken a role in protecting Mrs. Ortiz.’ ” 316 Fed. Appx., at 457

(Daughtrey, J., dissenting).

9 Apart from Bright’s testimony, the defense produced no evidence

that Ortiz “continually” talked about the assaults or in any other way

interfered with the investigation. See Tr. 271, 397 (Bright’s testimony

acknowledging absence of any documentation regarding Ortiz’s conduct

during investigation).

Cite as: 562 U. S. ____ (2011) 11

Opinion of the Court

Wright, A. Miller, & E. Cooper, Federal Practice and

Procedure §3914.10, p. 644 (1992)). To the extent that the

officials 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). See Brief for Respondents

11. They did not do so. The Court of Appeals, therefore,

had no warrant to upset the jury’s decision on the officials’

liability.

* * *

For the reasons stated, the judgment of the Court of

Appeals for the Sixth Circuit is reversed, and the case is

remanded for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 562 U. S. ____ (2011) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–737

_________________

MICHELLE ORTIZ, PETITIONER v. PAULA JORDAN

ET AL.

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 2–3. The Court

also reaches beyond that question, however, to address the

effect of Jordan and Bright’s 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 7–8. 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 appeal

able,* the time for filing an appeal will usually have run by

the conclusion of the trial. See §2107(a) (providing that a

——————

* See Mitchell v. Forsyth, 472 U. S. 511, 524–530 (1985) (holding that

some orders denying summary judgment constitute “ ‘final decisions’ ”

under the collateral order doctrine).

2 ORTIZ v. JORDAN

THOMAS, J., concurring in judgment

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 deny

ing 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 7–8. 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 ques

tion whether Jordan and Bright’s 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 3–4, 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 re

view 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 sum

mary judgment. 316 Fed. Appx., at 453. Whether, in

erroneously reviewing the order denying summary judg

Cite as: 562 U. S. ____ (2011) 3

THOMAS, J., concurring in judgment

ment, 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. Ortiz’s opening brief at the merits

stage focused on the question presented—whether the

Court of Appeals lacked jurisdiction to review an order

denying summary judgment. It was not until Jordan and

Bright’s 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 ad

dressed 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.