Applying Dupree to Part of a Summary-Judgment Denial


The Ninth Circuit held that it could review a purely legal issue raised in a denied summary-judgment motion even though a grant of summary-judgment on that issue would not have prevented a trial.


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