Pre- and Post-Judgment Review of Summary Judgment Denials After Ortiz v. Jordan — A Wider and Deeper Look

In Ortiz v. Jordan, 131 S.Ct. 884 (2011), the Supreme Court purported to resolve a split in the federal circuits over the circumstances under which federal appeals courts should review denials of summary judgment when the issue was raised on appeal after final judgment, after the party that was denied summary judgment also lost at trial. In fact, the Court actually decided the case on very narrow grounds, and never addressed the question that had most split the circuits: whether to embrace a legal-question exception to the general rule to refuse to entertain post-trial appeals from summary judgment denials.In this Article, I describe the pre-Ortiz circuit splits, analyze Ortiz, examine how the courts of appeals have handled the issue since Ortiz, and, in an effort to offer guidance to the federal courts of appeals and even the Supreme Court, address the issues with which the Supreme Court did not grapple in Ortiz, although it spoke to some of them in cursory fashion.By way of background, I describe the limited immediate appeal-ability of summary judgment denials and argue why interlocutory appeals of summary judgment denials should not be made more freely available to reduce the occasions for post-judgment review. I further argue that when pre-judgment appeals of denials of summary judgment are available, those appeals both are and should be permissive, rather than mandatory. More importantly, I argue that when interlocutory appeals of summary judgment denials are not available, and when they are available but are permissive and not taken (so that the issue of the correctness of those denials will be appealed, if at all, only after final judgment) post-trial, post-judgment appeals of the denials should be allowed when the denials were based on conclusions of law, rather than on conclusions that genuine issues of material fact existed. In so arguing, I disagree with the position taken in dicta by the Supreme Court in Ortiz.I offer several predicates for this conclusion in the Article. Among other things, appellants do not have adequate alternative remedies. Rule 50 motions are appropriate only for questions of the sufficiency of the evidence, and not for the kinds of legal questions that may be posed by motions for summary judgment. Moreover, law of the case principles and policies that govern the preservation of error for appeal argue against requiring Rule 50 motions as a prerequisite to appeal of summary judgment denials that were based on conclusions of law. Finally, summary judgment denials based on errors of law should be appeal-able after final judgment, in the interests of justice.In conclusion, I propose that, after final judgment, including after final judgment that follows a jury trial, denials of summary judgment that were predicated on legal holdings (and not on the existence of genuine issues of material fact) should be appeal-able as part of the appeal from the final judgment, assuming that mootness doctrines having nothing to do with the mere fact of trial have not made the issue moot. In view of the inaptness of Rule 50 motions and the questionable need for any additional motion to preserve the alleged error in a denial of summary judgment that was based upon a holding of law, before barring such appeals, the courts should make clear what other actions or omissions in the trial court will warrant a holding that the appellant has waived or failed to preserve the error in denying summary judgment that he seeks to argue on appeal.