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.