Applying Dupree to Part of a Summary-Judgment Denial


November 22, 2023
By Bryan Lammon

In Cottonwood Environmental Law Center v. Edwards, the Ninth Circuit applied the Supreme Court’s decision in Dupree v. Younger to permit review of part of a summary-judgment denial. In the course of doing so, the court rejected the argument that the denied summary-judgment motion needed to have been potentially dispositive as to the need for a trial.

The Summary-Judgment Denial in Cottonwood Environmental

Simplifying a fair bit, Cottonwood Environmental involved two theories of recovery under the Clean Water Act: a direct-discharge theory, and an indirect-discharge theory. The district court rejected the direct-discharge theory at summary judgment, concluding that the theory “failed as a matter of law as applied to the undisputed facts.” But the plaintiff could proceed to trial on its indirect-discharge theory. After the plaintiff lost at trial, it appealed the district court’s rejection of the direct-discharge theory.

Preserving Purely Legal Issues via Summary-Judgment Denials

The Ninth Circuit determined that it had jurisdiction over that issue. The denial of summary judgment normally does not preserve an issue for appeal after a trial on the merits. Preservation instead comes via motions under Federal Rule of Civil Procedure 50. But the Supreme Court held in Dupree that a denied summary-judgment motion can preserve purely legal issues. And the district court’s rejection of the direct-discharge theory involved a purely legal issue: the district court held that the theory failed without any reference to disputed facts.

Preserving Some Issues

The Ninth Circuit added that the denied summary-judgment decision need not have been potentially dispositive. “[S]electively quote[ing] dicta” from a pre-Dupree decision, the appellee had argued that summary-judgment denials are not appealable unless the decision—had it gone the other way—would “have completely obviated the need for a trial.”

The Ninth Circuit said that Dupree foreclosed this “all-or-nothing approach to appellate review of summary judgment denials”:

Dupree makes clear that a reviewing court may review some issues contained in a summary judgment denial, and not others.

So the Ninth Circuit could review the portion of the summary-judgment denial that rejected the direct-discharge theory.

Cottonwood Environmental Law Center v. Edwards, 2023 WL 8043823 (9th Cir. Nov. 21, 2023), available at the Ninth Circuit and Westlaw

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