Pen American Center, Inc. v. Escambia County School Board

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-13896

____________________

PEN AMERICAN CENTER, INC.,

GEORGE M. JOHNSON,

KYLE LUKOFF,

ANN NOVAKOWSKI,

On Behalf of Herself and Her Minor Child,

PENGUIN RANDOM HOUSE, LLC., et al.,

Plaintiffs-Appellees,

SARAH BRANNEN, et al.,

Plaintiffs,

versus

ESCAMBIA COUNTY SCHOOL DISTRICT, et al.,

Defendants,

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2 Opinion of the Court 24-13896

ESCAMBIA COUNTY SCHOOL BOARD,

Defendant-Appellant,

KEVIN ADAMS,

PAUL FETSKO,

PATTY HIGHTOWER,

WILLIAM SLAYTON,

DAVID WILLIAMS,

Interested Parties-Appellants.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 3:23-cv-10385-TKW-ZCB

____________________

Before BRANCH, ABUDU, and KIDD, Circuit Judges.

PER CURIAM:

This appeal comes to us in an unusual posture, as it pertains

to a discovery dispute instead of a final judgment. After a group of

plaintiffs sued the Escambia County School Board (“Board”) for

allegedly violating the First Amendment by removing or restricting

access to certain books in Escambia County public school libraries,

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the plaintiffs sought to take the depositions of the Board’s

members. The Board in turn sought a protective order on behalf

of its members based on, among other grounds, “legislative

privilege.” A magistrate judge granted a protective order based on

the Board’s assertion of a legislative privilege on behalf of its

members. But the district court vacated that protective order, and

the Board and its members appealed.

The problem for the Board and its members is that this case

does not fit in the narrow set of circumstances where we can hear

an appeal of a nonfinal order. The Board cannot appeal because it

lacks standing: the legislative privilege belongs to its members and

not the Board itself. And the Board members failed to participate

in the case below, meaning they do not fall into the limited

circumstances under which a nonparty may appeal an order. We

therefore lack jurisdiction to hear this appeal and must dismiss.

I. Background

At the heart of this appeal is the decision of the Board to

remove or restrict access to several books in school libraries in the

Escambia County School District after receiving complaints in

2022. The complaints came from Vicki Baggett, a county teacher,

about the use or age placement of the books for diverse reasons

related to the book’s contents, including that they allegedly

contained “pornography,” “race-baiting,” and “explicit language”;

“encourage[d] pedophilia”; and presented an “LGBTQ agenda

using penguins.”

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Under Florida law at the time of the events implicated here,

“[e]ach district school board [was] responsible for the content of all

instructional materials and any other materials used in a classroom,

made available in a school or classroom library, or included on a

reading list.” Fla. Stat. § 1006.28(2)(a)1. This responsibility

included the mandate that the “school board must adopt a policy

regarding an objection by a parent or a resident of the county to

the use of a specific material, which clearly describe[d] a process to

handle all objections and provide[d] for resolution.” Id.

§ 1006.28(2)(a)2. The process also permitted the objecting party to

present evidence that the challenged material was

(1) pornographic, (2) depicted or described sexual conduct, (3) was

not suited to student needs and their ability to comprehend the

material presented, or (4) was inappropriate for the grade level and

age group for which the material was used. Id. § 1006.28(2)(a)2.b.

In keeping with this mandate, the Board enacted a policy for

addressing objections to books found in the Escambia County

School District’s libraries. Under that policy, after receiving an

objection, a district review committee reviewed the book and

made a decision. That decision could then be appealed to the

Board. The Board had final decision-making authority on what, if

any, restrictions would be placed on the books.

After reviewing Baggett’s complaints, the Board removed

nine books and restricted access to others pending further review. 1

1 In their complaint, Plaintiffs asserted that ten books were removed. On

appeal, they assert that only nine were removed.

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In some instances, the Board voted to remove books from all

libraries, and in other instances the Board voted to allow only older

students to access the books.

Plaintiffs2 challenged the Board’s decision to remove the

books, alleging the decision violated their First Amendment rights.

According to Plaintiffs, the removals were purely based on

ideological disagreements with the contents of the books. Such

removals on ideological grounds, Plaintiffs argued, constitute a

government invasion of protected speech rights. Given their

theory centered on the motive for the removal of the books,

Plaintiffs sought to depose the individual members of the Board

regarding their motivations for their actions.

The Board moved for a protective order to prevent the

depositions, asserting, as relevant here, that its members possessed

a legislative privilege preventing inquiry into their voting decisions

on the matter. However, the Board’s first motion was denied

without prejudice by the magistrate judge, explaining that the

motion failed because “the legislative privilege is personal to the

legislator” and the Board’s motion failed to include an indication

that the individual Board members wished to invoke the privilege.

The Board filed a renewed motion for a protective order,

asserting its intention to bring the motion on behalf of its members.

2 Plaintiffs here are a nonprofit organization and publishing company, parents

whose children attend school within the district, and authors whose books

have been removed or restricted by the Board (collectively “Plaintiffs”).

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In support, it attached a declaration from each Board member

stating that “to the extent the legislative privilege is applicable to

me and may be invoked by me, I confirm my intent to assert the

legislative privilege here.” The Board members made no motions

or appearances themselves and did not participate in any other way

in the proceedings on the motion.

The magistrate judge granted the Board’s protective order

on legislative privilege grounds, but, after objections from

Plaintiffs, the district court reversed.

The Board appealed the district court’s order. So too did the

individual Board members, marking their first appearance in this

case. The district court stayed all proceedings pending resolution

of this appeal.

II. Standard of Review

“We have a special obligation to satisfy ourselves of our own

jurisdiction before proceeding to the merits of an appeal.” Finn v.

Cobb Cnty. Bd. of Elections & Registration, 111 F.4th 1312, 1316 (11th

Cir. 2024) (alteration adopted) (quotations omitted). Questions

relating to our own appellate jurisdiction are reviewed de novo, as

no other court has occasion to pass on issues relating to our own

jurisdiction. Id.

III. Discussion

The Board makes several arguments in opposition to the

district court’s denial of its motion for a protective order. Plaintiffs

argue in response that we lack appellate jurisdiction because there

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is no final order and the collateral order doctrine does not apply

because no party has standing to appeal the collateral order at issue.

In their view, the Board has not been aggrieved by the district

court’s order, and the Board members failed to intervene or

otherwise meaningfully participate in the district court

proceedings, making appellate review at this stage inappropriate.

The Board counters that appellate jurisdiction is proper under the

collateral order doctrine because the Board brought the motion for

a protective order on behalf of its members, and because Plaintiffs

did not challenge either the Board’s involvement or the Board

members’ level of participation in the proceedings below.

We agree with Plaintiffs and find we have no appellate

jurisdiction to consider the merits of this appeal.

Under 28 U.S.C. § 1291, we normally have jurisdiction to

review only “final decisions of the district courts of the United

States.” “This final judgment rule requires that a party must

ordinarily raise all claims of error in a single appeal following final

judgment on the merits.” Flanagan v. United States, 465 U.S. 259,

263 (1984) (quotation omitted). “The collateral order doctrine,

however, recognizes a small category of decisions that, although

they do not end the litigation, must nonetheless be considered

final” because they would be effectively unappealable after final

judgment. In re Hubbard, 803 F.3d 1298, 1305 (11th Cir. 2015)

(quotations omitted).

One of the established exceptions under the collateral order

doctrine is that “one who unsuccessfully asserts a governmental

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privilege may immediately appeal a discovery order where he is

not a party to the lawsuit.” Id. “Our precedent is clear that

government officials may appeal from the discovery order itself

without waiting for contempt proceedings to be brought against

them.” Id. In other words, even where no final judgment has been

rendered, collateral appeal of a discovery order may be appropriate

where a legislative privilege is asserted but denied.

But the existence of an appealable collateral order is not the

only requirement for our jurisdiction to be proper. For us to

properly exercise jurisdiction, Article III of the Constitution also

requires us to ensure there is a real controversy between the parties

at each stage of the litigation. See Wolff v. Cash 4 Titles, 351 F.3d

1348, 1353 (11th Cir. 2003). In the context of appellate standing,

the controversy requirement means a litigant must “establish their

standing . . . to appeal judgments” by showing he was “aggrieved

by the judgment” itself. Id. at 1353–54 (quotation omitted).

Further, in order to ensure true adversariness, “there is a well

settled rule that only parties to a lawsuit, or those that properly

become parties, may appeal an adverse judgment.” Finn, 111 F.4th

at 1316 (quotations omitted).

As for who “counts as a party,” for purposes of adversity and

standing, we have suggested in dicta that there may exist “an

exception” to our well-settled rule “where a nonparty—who has

not, for example, intervened—may still be considered a party who

can appeal.” Kimberly Regenesis, LLC v. Lee Cnty., 64 F.4th 1253, 1261

(11th Cir. 2023). But we have been clear that if such an exception

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exists, the nonparty at a minimum “must have at least participated

in the district court.” Id. at 1262. A nonparty “who did not

participate [cannot] appeal.” Finn, 111 F.4th at 1318.

Two recent cases help give us a picture of what “counts” as

participation. First, in Kimberly Regenesis, the plaintiffs sought to

depose county commissioners, who were not parties to the action.

64 F.4th at 1257. The county moved for a protective order based

on quasi-judicial immunity, but the commissioners filed no motion

and made no appearance before either the magistrate judge or the

district court. Id. at 1257–58. Instead, the commissioners’ first

appearance in the case was to appeal the district court’s adoption

of the magistrate’s order denying immunity. Id. at 1258. Under

those facts, we dismissed the appeal for lack of appellate standing

because (1) the county was not injured by the order because quasi-

judicial immunity belonged to the individual commissioners, and

(2) the non-party commissioners had not participated in the

proceedings before the district court. Id. at 1259, 1262. In so

holding, we concluded that “the county’s assertion of the

immunity [did not] equate to the commissioner’s participation in

the case.” Id. at 1264.

Then, in Finn, we ruled that a school district lacked standing

to appeal a preliminary injunction of a redistricting map. 111 F.4th

at 1316–20. There, the school district had intervened as a party-

defendant in the case but was later dismissed after successfully

obtaining a judgment on the pleadings regarding its liability. Id. at

1314. Meanwhile, the litigation between the plaintiffs and the

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other defendants continued. Id. at 1315. At the subsequent

preliminary injunction stage, the school district sought, and

obtained leave to oppose, the plaintiff’s motion for a preliminary

injunction as amicus. Id. But when the school district sought to

appeal the grant of the preliminary injunction, we held they lacked

standing because, even assuming that there is an exception for non-

party appeals based on participation, the school district, despite

being a party previously, had not participated as a party or an

intervenor in the relevant preliminary injunction proceedings. Id.

at 1317–20. We held that participation as an amicus “[did] not

qualify as participation for nonparty appellate standing.” Id. at

1319.

Turning then to the facts here, it is clear that under our prior

precedent neither the Board nor the Board’s members have

standing to appeal.

Beginning with the Board, the Board argues that “because

[it] raised the legislative privilege on behalf of the Board members,

the Board itself has standing just as the Board members do.” This

argument is squarely foreclosed by Kimberly Regenesis. Like the

Board in this case, the commissioner in Kimberly Regenesis

attempted to argue that he had standing to appeal because “the

county asserted his immunity on his behalf.” 64 F.4th at 1264. We

rejected this assertion, holding that “it wasn’t the county’s

immunity to assert” and that because the county did not possess

the privilege at issue, it lacked standing to appeal the denial of the

protective motion because it had not been adversely affected by the

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judgment. Id. at 1259–60, 1264. Just so here. As in Kimberly

Regenesis, the legislative immunity the Board asserted belongs to

the individual members, not the Board itself. See id. at 1259

(“[O]fficial immunities . . . belong to the official, not the county.”);

Hubbard, 803 F.3d at1309 (“[Legislators] each unquestionably hold

their own legislative privilege.”). Accordingly, the Board lacks

standing to assert the legislative privilege of its members, who each

individually possess the privilege insofar as they are entitled to it. 3

Second, the Board members did not participate in the

proceedings below, so they also lack standing. Just like the county

in Kimberly Regenesis, in this case the Board filed a renewed motion

for a protective order, asserting its intention to bring the motion

on behalf of its members. The Board members made no motions

or appearances themselves and did not participate in any other way

in the proceedings on the motion. The Board did attach a

declaration from each Board member stating that “to the extent the

legislative privilege is applicable to me and may be invoked by me,

I confirm my intent to assert the legislative privilege here.” But

these declarations are substantially less participation than the

3 The Board also appears to argue that Kimberly Regenesis is distinguishable

because it resolved an issue of quasi-judicial, instead of legislative, immunity.

The Board cites no law to explain why this is anything more than a distinction

without a difference. Both Hubbard (on which the Board relies) and Kimberly

Regenesis discussed government privileges generally and referenced executive

and legislative privileges interchangeably when assessing appellate

jurisdiction. See Hubbard, 803 F.3d at 1305–07; Kimberly Regenesis, 64 F.4th at

1259–60.

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school district in Finn, which obtained leave to oppose the actual

motion at issue as amicus, and nonetheless was held to have not

participated for purposes of appellate standing. See Finn, 111 F.4th

at 1316–20. The Board members did not appear, brief, argue, or in

any other way participate in the proceedings below. Therefore,

they also lack appellate standing.

All of the Board’s remaining arguments to the contrary are

meritless. The Board argues that Hubbard controls here because

that case conclusively established that discovery orders denying a

governmental privilege are immediately appealable. But in

Hubbard, we did not address the issue of appellate standing because

the individual lawmakers themselves appeared and moved to

quash the subpoenas. See 803 F.3d at 1305–06. Thus, far from being

contrary to our ruling here, Hubbard supports exactly what we have

stated: a party who appears and participates or intervenes in a

proceeding may have appellate standing to appeal a discovery

order denying a governmental privilege. Id.

The Board also argues Plaintiffs are barred from arguing we

lack appellate jurisdiction because they accepted the Board’s

standing to move for a protective order in the proceedings below.

But this argument fundamentally misunderstands our

constitutional obligation to independently ensure our own subject

matter jurisdiction exists, for absent such jurisdiction, we lack

constitutional authority to proceed. See Amerisure Ins. Co. v. Auchter

Co., 94 F.4th 1307, 1310 (11th Cir. 2024) (“[W]e also have an

independent obligation to determine whether appellate

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jurisdiction exists in each case, regardless of whether the parties

raised that issue.”). We have therefore held that a party’s “earlier

position [in the litigation] cannot be taken as a waiver and bar to

his position on appeal because arguments regarding subject matter

jurisdiction cannot be waived.” First Union Nat’l Bank of Fla. v. Hall,

123 F.3d 1374, 1378 n.7 (11th Cir. 1997).

In summary, because the legislative privilege asserted

belongs to the Board members not the Board, and the Board

members did not participate in the litigation below, we lack

appellate jurisdiction to review this appeal and must dismiss.

IV. Conclusion

We lack jurisdiction to hear this interlocutory appeal. It is

therefore dismissed.

DISMISSED.