Applying Dupree to Part of a Summary-Judgment Denial
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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