R. W. v. Columbia Basin College

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

R. W., individually and on behalf of No. 21-35995

his marital community,

D.C. No.

Plaintiff-Appellee, 4:18-cv-05089-

RMP

v.

COLUMBIA BASIN COLLEGE, a OPINION

public institution of higher education;

LEE THORNTON, in his individual

capacity; RALPH REAGAN, in his

official and individual capacities;

REBEKAH WOODS, in her official

capacity,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted February 16, 2023

Seattle, Washington

Filed August 14, 2023

2 R. W. V. COLUMBIA BASIN COLL.

Before: Richard A. Paez and Lawrence VanDyke, Circuit

Judges, and Roger T. Benitez, * District Judge.

Opinion by Judge Paez

SUMMARY **

Eleventh Amendment Immunity / Jurisdiction

On interlocutory appeal, the panel (1) affirmed the

district court’s order determining that plaintiff’s suit for

injunctive relief against Columbia Basin College officials in

their official capacity could proceed under the Ex parte

Young exception to Eleventh Amendment sovereign

immunity; and (2) dismissed in part defendants’ appeal for

lack of jurisdiction in plaintiff R.W.’s action alleging First

Amendment violations and other claims arising from his

termination from a nursing program at Columbia Basin

College.

Columbia Basin College officials terminated R.W. from

the nursing program after learning that he had sought

medical treatment for homicidal thoughts about three

instructors. R.W. filed suit seeking damages, reinstatement

in the nursing program, and expungement of his failing

grades.

*

The Honorable Roger T. Benitez, United States District Judge for the

Southern District of California, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

R. W. V. COLUMBIA BASIN COLL. 3

Determining that it had jurisdiction under the collateral

order doctrine, the panel agreed with the district court that

Columbia Basin College officials were subject to suit in their

official capacities for prospective relief under the Ex parte

Young exception to Eleventh Amendment sovereign

immunity, which permits actions seeking prospective relief

against officials for violation of federal law. The panel held

that R.W.’s complaint alleged an ongoing violation of his

constitutional rights given the uncertainty as to whether he

could reenroll in the nursing program or qualify for financial

aid; his claim for prospective relief was not moot; and the

Dean of Student Conduct was a proper defendant because he

was directly involved with the alleged constitutional

violations and there was a question of fact as to whether he

had authority to implement injunctive relief if so ordered.

The panel held that it lacked jurisdiction to review the

district court’s order declining to reconsider its prior partial

summary judgment for R.W. on his 42 U.S.C. § 1983 claim

for violation of the First Amendment. The merits of R.W.’s

First Amendment claim were severable from, and neither

necessary to nor necessarily resolved by, the district court’s

ruling on the Ex parte Young issue, and were reviewable

upon entry of final judgment.

The panel also held that it lacked jurisdiction to review

the district court’s order substituting the current CBC

president for the former president, who had resigned prior to

the commencement of litigation. Interlocutory orders

granting party substitution under Fed. R. Civ. P. 25 are not

subject to immediate review under the collateral order

doctrine, and the court’s jurisdiction to review the

application of Ex Party Young did not extend to permit

interlocutory review of the order.

4 R. W. V. COLUMBIA BASIN COLL.

COUNSEL

Jacob E. Brooks (argued) and Carl P. Warring, Assistant

Attorneys General; Robert W. Ferguson, Attorney General;

Attorney General’s Office, Spokane, Washington; for

Defendant-Appellant.

Bret J. Uhrich (argued) and Eric B. Eisinger, Walker Heye

PLLC, Richland, Washington, for Plaintiff-Appellee.

OPINION

PAEZ, Circuit Judge:

R.W., a nursing student at Columbia Basin College

(CBC), sought medical treatment for homicidal thoughts

about three of his instructors in March 2017. His doctor

contacted mental health crisis responders, who sent a social

worker to evaluate him at the doctor’s office. R.W.

voluntarily admitted himself to inpatient psychiatric

treatment the same afternoon and remained there for four

nights. The social worker, perceiving an automatic duty to

warn, reported R.W.’s statements to the local police. When

the report reached CBC, college officials terminated R.W.

from the nursing program, barred him from campus, and

entered failing grades for his in-progress coursework.

In May 2018, R.W. filed suit against CBC as well as

CBC President Lee Thornton and CBC Dean of Student

Conduct Ralph Reagan (together, “CBC officials”) seeking

damages and injunctive relief. He alleged violations of his

First Amendment rights and other claims related to mental

health discrimination. The district court entered partial

R. W. V. COLUMBIA BASIN COLL. 5

summary judgment in favor of R.W. on his First Amendment

claim and rejected the CBC officials’ claim of qualified

immunity. The officials appealed the denial of qualified

immunity, and we reversed, holding that they were entitled

to qualified immunity because the constitutional right at

issue in R.W.’s case was not clearly established at the time

of the violation. R.W. v. Columbia Basin Coll., 842 F. App’x

153, 154 (9th Cir. 2021). We remanded the case for further

proceedings.

On remand, R.W. continued to pursue injunctive relief

against CBC and the officials, seeking reinstatement in the

nursing program and expungement of failing grades from the

winter 2017 quarter. The defendants again moved for

summary judgment, which the district court granted in part

and denied in part. R.W. v. Columbia Basin Coll., 572 F.

Supp. 3d 1010 (E.D. Wash. 2021). The district court

determined that CBC was immune from suit under the

Eleventh Amendment and dismissed it from the case. It

held, however, that the Ex parte Young 1 doctrine permitted

R.W. to pursue his claim for injunctive relief, which

remained live, against the CBC officials in their official

capacities. It also declined to revisit its grant of summary

judgment on liability. In this interlocutory appeal, CBC

officials raise various challenges to the district court’s

ruling.

We hold that the district court correctly applied the Ex

parte Young doctrine allowing R.W.’s suit to proceed against

the CBC officials and that the case is not moot. We lack

jurisdiction to review the district court’s order declining to

reconsider its partial summary judgment ruling on liability

or its order substituting the current CBC president as a

1

209 U.S. 123 (1908).

6 R. W. V. COLUMBIA BASIN COLL.

defendant.

I.

In spring 2017, R.W. was one quarter away from

completing the nursing program at CBC. He had taken

medical leave from CBC during the fall 2016 quarter. By

February 2017, his medical conditions had worsened, and he

had begun to have intrusive violent thoughts.

On February 28, 2017, R.W. called his primary care

doctor’s office to report his concerns and schedule an

appointment. R.W. attended classes at CBC between

February 28 and his March 6 appointment without

mentioning his violent thoughts to anyone else. During the

March 6 appointment, R.W. told his doctor that school made

him feel anxious and overwhelmed and that he had been

struggling to sleep. R.W. also told the doctor that he had

intrusive, disturbing thoughts and visions of killing his

instructors.

The doctor contacted Lourdes Hospital’s Crisis

Response Counseling Center to conduct a mental health

evaluation. The Center dispatched a social worker to

evaluate R.W. at the doctor’s office. R.W. told the social

worker about his homicidal thoughts toward three specific

instructors. R.W. agreed to voluntarily admit himself for

inpatient psychiatric treatment that afternoon. He spent four

nights in an inpatient facility. Counselors who discharged

him on March 10 concluded that he was not a threat to others.

Because R.W. had disclosed homicidal thoughts, the

social worker believed she had a duty to warn law

enforcement authorities. She reported R.W.’s statements to

the local police department, telling the officer that “in her

opinion the threats did not appear to be serious and that

R. W. V. COLUMBIA BASIN COLL. 7

[R.W.] seemed very remorseful for his thoughts.” On the

morning of March 7, the police notified CBC’s campus

security. Campus security then informed Kim Tucker—the

dean of the nursing program and one of the instructors about

whom R.W. had reported thoughts—as well as Dean of

Student Conduct Ralph Reagan.

Upon receiving this information on March 7, Reagan

issued an interim notice to R.W. that barred him from CBC’s

campus pending an investigation into his alleged conduct.

Tucker issued a “Nursing Student Discontinuation Form,”

effective March 7, 2017, which terminated R.W. from the

nursing program based on “incomplete winter quarter

trespassed [barred] from campus.” On March 8, Reagan also

issued a second letter to R.W. regarding initiation of the

student conduct process.

R.W. appealed the interim restriction, and the Student

Appeals Board upheld it days later. R.W. then appealed the

Student Appeals Board’s decision to CBC President Lee

Thornton. On review, Thornton modified the interim

restriction by lifting the order barring R.W. from the Pasco

campus (where no nursing courses are taught) but requiring

R.W. to coordinate any need to be on the Richland campus

(the site of the nursing program) with Reagan.

In April, after meeting with R.W. and reviewing his

medical records, Reagan issued a sanction letter finding

R.W. responsible for violating CBC’s policy on Abusive

Conduct. This policy, contained in Wash. Admin. Code

§ 132S-100-205, prohibits:

Physical and/or verbal abuse, threats,

intimidation, harassment, online harassment,

coercion, bullying, cyberbullying, retaliation,

8 R. W. V. COLUMBIA BASIN COLL.

stalking, cyberstalking, and/or other conduct

which threatens or endangers the health or

safety of any person or which has the purpose

or effect of creating a hostile or intimidating

environment.

Specifically, Reagan determined that R.W. had

committed “other conduct” that had the “effect of creating a

hostile or intimidating environment.” When deposed,

Reagan testified that the “conduct” at issue was R.W.’s

“thoughts and ideation” and “him reporting it.” It is

undisputed that R.W. did not engage in any physical or

verbal abuse, threats, intimidation, or harassment.

R.W. again appealed to the Student Appeals Board

requesting review of the misconduct finding. The Student

Appeals Board affirmed the finding, and R.W. appealed to

the CBC president. In June 2017, Thornton upheld the

finding of misconduct under Wash. Admin. Code § 132S-

100-415(5)(c)(iii) and the related sanctions.

On May 25, 2018, R.W. filed suit against CBC,

Thornton, and Reagan. R.W. alleged a 42 U.S.C. § 1983

claim for violation of the First Amendment as well as other

claims related to mental health discrimination. 2 He sought

injunctive relief, nominal and compensatory damages,

attorneys’ fees, and any other just and equitable relief.

2

R.W.’s statutory claims alleging that CBC and its officials

discriminated against him on the basis of mental health disability

proceeded to a jury trial in August 2022. The jury returned a verdict for

defendants. ECF No. 250, R.W. v. Columbia Basin College, No. 4:18-

cv-05089-MKD (E.D. Wash. Aug. 9, 2022). In addition, R.W. alleged a

§ 1983 claim for violation of the Equal Protection Clause, which he has

since abandoned.

R. W. V. COLUMBIA BASIN COLL. 9

In June 2019, the parties filed cross motions for partial

summary judgment. The district court denied qualified

immunity to the CBC officials, granted partial summary

judgment for R.W. as to liability on the First Amendment

§ 1983 claim, and denied the parties’ competing motions for

summary judgment related to the statutory disability

discrimination claims. As to liability, the district court

concluded that the sanctions CBC imposed on R.W. in

response to statements made to his doctor to obtain medical

assistance violated R.W.’s First Amendment right to free

speech.

CBC officials appealed the denial of qualified immunity.

In March 2021, we reversed the district court’s decision,

holding that the officials were entitled to qualified immunity

because the constitutional right at issue was not clearly

established at the time of the violation. R.W., 842 F. App’x

at 154. Our decision did not address the merits of R.W.’s

First Amendment claim. Id.

On remand, R.W. pursued his remaining claim for

injunctive relief, seeking reinstatement in the nursing

program and expungement of his failing grades from the

winter 2017 quarter. In a new motion for summary

judgment, CBC and the defendant officials invoked

Eleventh Amendment sovereign immunity and asked the

district court to reconsider its prior grant of summary

judgment regarding liability. They argued that the Supreme

Court’s intervening decision in Mahanoy Area School

District v. B.L. ex rel. Levy, 141 S. Ct. 2038 (2021), required

the district court to analyze R.W.’s case under the Tinker

doctrine, see Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969).

10 R. W. V. COLUMBIA BASIN COLL.

In November 2021, the district court granted in part and

denied in part the defendants’ motion. The district court held

that CBC was immune from suit and dismissed it from the

case but that the Ex parte Young doctrine permitted R.W. to

pursue injunctive relief against the defendant officials in

their official capacities. The court also declined to disturb

its grant of summary judgment on liability, concluding that

Mahanoy did not apply.

In this interlocutory appeal, CBC officials raise various

challenges to the district court’s ruling that Ex parte Young

applies to R.W.’s claim, including that the case is moot. We

hold that the district court correctly applied the Ex parte

Young exception to this case and that a live controversy

remains. Furthermore, although the officials characterize

their appellate arguments as pertaining only to the

applicability of Ex parte Young, they advance arguments that

call for us to review the district court’s refusal to reconsider

its grant of partial summary judgment and its substitution of

current CBC President Rebekah Woods as a proper

defendant in place of Thornton. These issues are distinct

from Ex parte Young, and we hold that we lack jurisdiction

to consider them on an interlocutory basis.

II.

CBC officials seek review of the denial of their Eleventh

Amendment immunity under the Ex parte Young exception.

See Ex parte Young, 209 U.S. 123 (1908). In Ex parte

Young, the Court held that the Eleventh Amendment does

not bar an action seeking prospective relief against a state

official for a violation of federal law. See 209 U.S. at 159–

60. Because a state officer who violates federal law acts

outside the scope of her authority, she is “not the State for

sovereign-immunity purposes” and is subject to a federal

R. W. V. COLUMBIA BASIN COLL. 11

court’s injunctive power. Va. Off. for Prot. & Advoc. v.

Stewart, 563 U.S. 247, 254 (2011). Nonetheless, an action

brought under Ex parte Young “is not a suit against the

official but rather is a suit against the official’s office.” Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The

doctrine thus rests on a well-known paradox:

“unconstitutional conduct by a state officer may be ‘state

action’ for purposes of the Fourteenth Amendment yet not

attributable to the State for purposes of the Eleventh.” Fla.

Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 685

(1982) (citation omitted).

The collateral order doctrine gives us jurisdiction over

this interlocutory appeal. See Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949). 3 This doctrine

permits appellate review of a “small class” of district court

orders that do not resolve an entire case. Id. at 546. An order

may belong to this class if it satisfies three requirements

derived from the Court’s Cohen decision: it “must [1]

conclusively determine the disputed question, [2] resolve an

important issue completely separate from the merits of the

action, and [3] be effectively unreviewable on appeal from a

final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006)

(internal quotation omitted). The doctrine is “best

3

R.W. argues that the collateral order doctrine does not apply in this

case, but we repeatedly have invoked it to review a district court’s

application of Ex parte Young. See, e.g., Miranda B. v. Kitzhaber, 328

F.3d 1181, 1186 & n.6 (9th Cir. 2003); In re Ellett, 254 F.3d 1135, 1138

& n.1 (9th Cir. 2001); Sofamor Danek Group, Inc. v. Brown, 124 F.3d

1179, 1183 n.2, 1184–85 (9th Cir. 1997); see also Crawford-El v.

Britton, 523 U.S. 574, 598 n.21 (1998) (“If the official seeks summary

judgment on immunity grounds and the court denies the motion, the

official can take an immediate interlocutory appeal, even if she has

already so appealed a prior order.”).

12 R. W. V. COLUMBIA BASIN COLL.

understood not as an exception to the final decision rule laid

down by Congress in [28 U.S.C.] § 1291, but as a practical

construction of it.” Id. at 349. We strictly observe the limits

on this narrow category of orders to preserve “the general

rule that a party is entitled to a single appeal, to be deferred

until final judgment has been entered.” Mohawk Indus., Inc.

v. Carpenter, 558 U.S. 100, 106 (2009) (quoting Digit.

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867

(1994)).

Although the collateral order doctrine allows us to

review the application of Ex parte Young, CBC officials

raise other issues that exceed the scope of that inquiry.

Mindful of our “special obligation to satisfy” ourselves of

our subject-matter jurisdiction, we examine whether we may

consider their arguments that the district court erred in its

refusal to reconsider its ruling on liability or in its party

substitution order. Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 95 (1998); accord In re Martinez, 721 F.2d 262,

264 (9th Cir. 1983) (holding that federal courts have both the

inherent authority and the responsibility to consider their

own jurisdiction). We hold that we lack jurisdiction to

decide these ancillary issues.

A.

For a suit to proceed under Ex parte Young, the plaintiff

must allege—not prove—an ongoing violation of federal

law for which she seeks prospective injunctive relief. Koala

v. Khosla, 931 F.3d 887, 895 (9th Cir. 2019). The CBC

officials ignore this narrow inquiry and characterize the

merits of R.W.’s First Amendment claim as part of the Ex

parte Young analysis. They argue that Ex parte Young

should not apply because R.W.’s statements were a true

threat rather than protected speech and because the CBC

R. W. V. COLUMBIA BASIN COLL. 13

officials’ actions were constitutional under the Tinker

doctrine. These arguments amount to an interlocutory

appeal of the district court’s refusal to reconsider its previous

summary judgment ruling that defendants violated the First

Amendment.

The collateral order doctrine does not permit

interlocutory review of the district court’s refusal to

reconsider a partial grant of summary judgment, whether as

part of the Ex parte Young inquiry or independently under

the collateral order doctrine.

This case is not the first in which we have rejected an

appellant’s attempt to obtain review of interlocutory rulings

on liability defenses by associating them with an issue that

is reviewable under the collateral order doctrine. In Miranda

B. v. Kitzhaber, 328 F.3d 1181, 1189–91 (9th Cir. 2003), we

held that although the collateral order doctrine provided

jurisdiction to review the application of Ex parte Young, that

jurisdiction did not encompass review of the denial of the

state’s motion to dismiss the underlying § 1983 claims. The

state argued that sovereign immunity was either

“implicated” or “inextricably intertwined with the § 1983

claims,” providing us with jurisdiction. Miranda B., 328

F.3d at 1190. We rejected both arguments. We first

explained that there was no direct implication because “the

‘essence’ of the State’s argument [was] not immunity from

suit or a right not to stand trial, but a defense to suit.” Id.

(quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 524

(1988) (stating that “‘the essence’ of the claimed right [must

be] a right not to stand trial”) (citation omitted)). We then

concluded that neither was sovereign immunity

“inextricably intertwined” with the merits of the § 1983

claims; rather, the state’s appeal of the application of Ex

14 R. W. V. COLUMBIA BASIN COLL.

parte Young was “completely separable and distinct from the

merits of [] Miranda B.’s § 1983 claim.” Id.

A decade later, we applied the same reasoning when we

dismissed the interlocutory appeal in Nunag-Tanedo v. East

Baton Rouge Parish School Board, 711 F.3d 1136, 1140 (9th

Cir. 2013), for lack of jurisdiction. In that case, the collateral

order doctrine did not permit review of the district court’s

denial of Noerr-Pennington immunity, which was “a merits

defense to liability, premised on an implied limitation as to

the reach of the applicable law,” id. at 1139, that was “no

more a protection from litigation itself than is any other

ordinary defense, affirmative or otherwise and

constitutionally grounded or not,” id. at 1140. The question

of liability was thus “part and parcel of the merits of the

plaintiffs’ action” and reviewable upon final judgment. Id.

at 1139.

Finally, we addressed an analogous issue in SolarCity

Corp. v. Salt River Project Agricultural Improvement &

Power District, 859 F.3d 720 (9th Cir. 2017). In this

antitrust case, the Power District sought interlocutory review

of the denial of its motion to dismiss, in which it had asserted

immunity under the state action doctrine. Applying Nunag-

Tanedo, 711 F.3d at 1140, we held that the state action

doctrine “is a defense to liability, not immunity from suit”

and thus is not appealable under the collateral order doctrine.

SolarCity Corp., 859 F.3d at 726–27. In reaching this result,

we heeded the Supreme Court’s emphasis on the narrow

scope of the collateral order doctrine. Id. at 725 (noting the

Supreme Court’s “admonition that the collateral-order

doctrine is a narrow exception . . . that must be strictly

applied” (internal quotation marks and citations omitted)).

Indeed, the Supreme Court has directed that when we

evaluate the requirements of the collateral order doctrine, we

R. W. V. COLUMBIA BASIN COLL. 15

must “consider ‘the entire category to which a claim

belongs.’” Id. at 724 (quoting Digit. Equip., 511 U.S. at

868); accord Childs v. San Diego Fam. Hous. LLC, 22 F.4th

1092, 1095–96 (9th Cir. 2022). “As long as the class of

claims, taken as a whole, can be adequately vindicated by

other means, ‘the chance that the litigation at hand might be

speeded, or a particular injustice averted,’ does not provide

a basis for jurisdiction under § 1291.” SolarCity Corp., 859

F.3d at 724 (quoting Mohawk Indus., Inc., 558 U.S. at 107

(alterations and internal citations omitted)).

These cases demonstrate our careful application of the

Cohen test, under which the collateral order doctrine applies

exclusively to issues on interlocutory appeal that are

“completely separate from the merits” and effectively

unreviewable if the case proceeds to final judgment. Will,

546 U.S. at 349. Ex parte Young requires only allegations

of a constitutional violation and a request for prospective

injunctive relief to restrict state officials from asserting

immunity from suit in their official capacities. The merits of

R.W.’s First Amendment claim are thus “severable from,

and neither necessary to nor necessarily resolved by,” the

court’s ruling on the Ex parte Young issue. Nunag-Tanedo,

711 F.3d at 1141. The district court’s partial grant of

summary judgment regarding liability can be reviewable

upon entry of final judgment. See id. at 1139.

We thus cabin our interlocutory review to whether

R.W.’s complaint alleged an ongoing constitutional

violation for which he sought prospective injunctive relief.

We dismiss for lack of jurisdiction the CBC officials’ claim

that the district court erred in refusing to reconsider its prior

ruling that they violated R.W.’s First Amendment rights.

16 R. W. V. COLUMBIA BASIN COLL.

B.

The CBC officials also take umbrage with the district

court’s substitution of current CBC President Rebekah

Woods for Lee Thornton, the former president who resigned

prior to the commencement of the litigation. Like the issue

of liability, party substitution under Federal Rule of Civil

Procedure 25 falls outside the Ex parte Young analysis.

Woods’s argument that substituting her for Thornton

deprives her of Eleventh Amendment immunity lacks merit.

Updating the name of a party sued in an official capacity to

reflect the present occupant of that office is irrelevant to the

officeholder’s immunity from suit. We treat a claim against

a government officer in her official capacity as a claim

against the employing entity. Kentucky v. Graham, 473 U.S.

159, 165–66 (1985) (explaining that an official-capacity suit

“is not a suit against the official personally, for the real party

in interest is the entity”); see also In re Ellett, 254 F.3d at

1138 (“The Court has recognized that the Ex Parte

Young doctrine is based upon the ‘fiction’ that a state officer

who violates federal law in his official capacity, pursuant to

his authority under state law, is nonetheless not a state agent

for sovereign immunity purposes.” (quoting Idaho v. Coeur

d’Alene Tribe, 521 U.S. 261, 269–70 (1997))).

An official-capacity suit for injunctive relief is properly

brought against persons who “would be responsible for

implementing any injunctive relief.” Pouncil v. Tilton, 704

F.3d 568, 576 (9th Cir. 2012); accord Colwell v. Bannister,

763 F.3d 1060, 1070–71 (9th Cir. 2014). To determine

whether official immunity applies, we ask whether the CBC

president—notwithstanding the identity of the person

performing that role at any given time—can implement

R. W. V. COLUMBIA BASIN COLL. 17

injunctive relief to remedy the alleged ongoing violation of

federal law.

The district court substituted the current CBC president,

in her official capacity, for the former one as a procedural

matter. Although Thornton resigned before R.W. filed suit,

the logic behind updating the name of the current occupant

of an official position nonetheless applies. See Fed. R. Civ.

P. 25(d) (“[A]ny misnomer not affecting the parties’

substantial rights must be disregarded.”); 6 James Wm.

Moore et al., Moore’s Federal Practice—Civil § 25.40

(Matthew Bender 3d ed. 2021); see also Echevarria-

Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 31 (1st Cir.

1988) (explaining that when “the action is brought against a

public officer in his official capacity, the manipulation of

names is merely a technicality that should not interfere with

substantial rights” (internal citations omitted)). Because

R.W. seeks injunctive relief against Woods in her official

capacity as CBC president, her substitution for Thornton is

external to the Ex parte Young analysis. Our jurisdiction to

review the application of Ex parte Young therefore does not

extend to permit interlocutory review of the district court’s

Rule 25 substitution order.

We next examine whether the collateral order doctrine

provides jurisdiction to review this class of orders

independent from the Ex parte Young analysis. We have

observed that orders granting and denying Rule 25 party

substitution pose distinct questions of reviewability, but our

past cases have not required us to decide whether we have

jurisdiction to review an interlocutory order granting

substitution. See Virtue Glob. Holdings Ltd. v. Rearden

LLC, 2016 WL 4259213, at *3 (N.D. Cal. Aug. 11, 2016)

(citing In re USA Com. Mortg. Co., 397 F. App’x 300, 304

(9th Cir. 2010)). We now hold that interlocutory orders

18 R. W. V. COLUMBIA BASIN COLL.

granting Rule 25 party substitution are not subject to

immediate review under the collateral order doctrine.

To warrant review under the collateral order doctrine, an

interlocutory order must “conclusively determine the

disputed question, resolve an important issue completely

separate from the merits of the action, and [be] effectively

unreviewable on appeal from a final judgment.” Pelletier v.

Fed. Home Loan Bank of S. F., 968 F.2d 865, 873 (9th Cir.

1992) (internal citations and quotation marks omitted). The

order must meet all three requirements. McElmurry v. U.S.

Bank Nat’l Ass’n, 495 F.3d 1136, 1140 (9th Cir. 2007).

Because an order substituting a party under Rule 25 fails to

satisfy the third prong, we need not discuss the other two

requirements. Lauro Lines S.R.L. v. Chasser, 490 U.S. 495,

498 (1989) (explaining that when the order in question

“fail[s] to satisfy the third requirement of the collateral order

test,” “we need not decide whether [the] order” meets the

other prongs); see also Mohawk Indus., Inc., 558 U.S. at

108.

An order satisfies the third prong of the Cohen test only

if it “involves an asserted right the legal and practical value

of which would be destroyed if it were not vindicated before

trial.” Midland Asphalt Corp. v. United States, 489 U.S.

794, 799 (1989) (internal quotation marks omitted). “That a

ruling may burden litigants in ways that are only imperfectly

reparable by appellate reversal of a final district court

judgment has never sufficed.” Mohawk Indus., Inc., 558

U.S. at 107 (internal quotation marks and ellipses omitted).

Party substitution under Rule 25 allows an action to

continue unabated when a party’s death, incompetency,

transfer of interest, or the replacement of a public official

causes an interest in the lawsuit to change hands. See Fed.

R. W. V. COLUMBIA BASIN COLL. 19

R. Civ. P. 25. Where substitution does not automatically

occur, whether to allow it is committed to the district court’s

discretion and is appropriate when it will “facilitate the

conduct of the litigation.” In re Bernal, 207 F.3d 595, 598

(9th Cir. 2000) (describing the operation of Rule 25(c)). In

the past, we have “assum[ed], without deciding” that an

order denying a motion for substitution is appealable. Dodd

v. Pioche Mines Consol., Inc., 308 F.2d 673, 674 (9th Cir.

1962) (per curiam). Indeed, some of our sister circuits have

entertained appeals from orders denying party substitution

when that denial ended the litigation. See, e.g., Billino v.

Citibank, N.A., 123 F.3d 723, 727 (2d Cir. 1997) (“[B]ecause

the denial of the motion to substitute caused the dismissal of

the action [since there was no party able to carry on the

action], an appeal by [the party] would be from a final

order.”); see also In re Covington Grain Co., Inc., 638 F.2d

1357, 1360 (5th Cir. Unit B Mar. 1981).

In contrast to an order denying substitution, an order

granting party substitution lacks this functional finality and

is reviewable upon final judgment. See, e.g., Ashmore v.

CGI Grp., Inc., 860 F.3d 80 (2d Cir. 2017) (holding that the

district court’s interlocutory orders dismissing the plaintiff

and substituting another party in his stead were not

immediately appealable under the collateral order doctrine

and dismissing the appeal for lack of jurisdiction); Prop-

Jets, Inc. v. Chandler, 575 F.2d 1322, 1325 (10th Cir.

1978) (holding that the district court’s interlocutory Rule 25

order was reviewable on final judgment and thus “non-

appealable,” consistent with authority that “generally held

that an order granting substitution of a party or adding an

additional party is interlocutory”).

Additional persuasive authority supports our

determination that party substitution orders are not subject

20 R. W. V. COLUMBIA BASIN COLL.

to immediate review because they are reviewable upon entry

of final judgment. See 7C Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure

§ 1962 (3d ed. 2007) (collecting cases from the First, Third,

Fourth, Fifth, and Tenth Circuits to show that “[a]n order

allowing substitution under Rule 25 is interlocutory and not

appealable of right” and “[t]he propriety of the substitution

can be raised on appeal from a final judgment”); see also

15B Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3914.18 (2d ed.

1992) (observing that “[o]rdinarily orders granting or

denying substitution are not final” but that in some cases, the

denial of substitution might satisfy the collateral order

doctrine).

We agree with these sources and hold that that an

interlocutory order granting Rule 25 party substitution is not

appealable under the collateral order doctrine. We therefore

lack jurisdiction to review the district court’s substitution of

Woods for Thornton, and we dismiss this portion of the

appeal.

III.

Having established the bounds of our jurisdiction, we

turn to whether the district court correctly determined that

R.W.’s action for injunctive relief could proceed against

defendants Reagan and Woods in their official capacities

under the Ex parte Young exception to sovereign immunity.

“In determining whether the doctrine of Ex parte

Young avoids an Eleventh Amendment bar to suit, a court

need only conduct a ‘straightforward inquiry into whether

[the] complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.’”

R. W. V. COLUMBIA BASIN COLL. 21

Koala, 931 F.3d at 895 (quoting Verizon Md. Inc. v. Pub.

Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)).

We agree with the district court that R.W.’s complaint

meets these criteria. 4

Defendants Reagan and Woods contend that R.W. failed

to allege an ongoing constitutional violation, that the case is

moot, and that Reagan is not a proper defendant because he

lacks authority to implement the relief that R.W. seeks. After

considering these arguments, we conclude that the district

court correctly determined that R.W. alleged an ongoing

constitutional violation, that his claim for prospective

injunctive relief remains live, and that Reagan is subject to

suit under Ex parte Young.

A.

The CBC officials contend that the district court failed to

recognize a distinction between an ongoing violation and

ongoing harm from a past violation. Their proffered

authority for this proposition consists of unpublished, out-

of-circuit cases involving discrete or time-limited

punishments, such as the issuance of a single letter grade or

a two-year expulsion period. See Nicholl v. Attorney Gen.

Ga., 769 F. App’x 813 (11th Cir. 2019); McLaughlin v. Fla.

Int’l Univ. Bd. of Trustees, 533 F. Supp. 3d 1149 (S.D. Fla.

2021), aff’d, No. 21-11453, 2022 WL 1203080 (11th Cir.

4

R.W.’s complaint seeks prospective relief against CBC officials in their

official capacities under Ex parte Young “to enjoin their violations of

[his] rights under the First Amendment . . . ” and requests an injunction

“lifting the [no] trespass order related to R.W., enjoining CBC from

requiring R.W. to retake all courses to complete his degree, and

preventing CBC from requiring [R.W.] to obtain medical care and make

regular reports of his medical treatment as a condition of re-enrollment,”

as well as “all other relief the court deems just and equitable.”

22 R. W. V. COLUMBIA BASIN COLL.

Apr. 22, 2022). In contrast, R.W. was barred from campus

indefinitely, removed from his program of study, and

subjected to conditions on his potential return that had no

stated end date. The district court correctly observed that

R.W.’s ability to seek or obtain reenrollment at CBC remains

uncertain, as does his ability to qualify for financial aid. On

this record, R.W. has alleged an ongoing violation of his

constitutional rights as Ex parte Young requires.

B.

The CBC officials also assert that R.W.’s claim for

injunctive relief has become moot since the commencement

of this lawsuit because the sanctions expired at some point

after R.W. did not attempt to reenroll under their terms in

winter 2018. The officials represent that R.W. is now “free

to seek reenrollment in the nursing program without regard

to the prior decisions.”

The voluntary cessation of challenged conduct moots a

case “only if it is absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.”

Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222

(2000) (internal quotation omitted). “The party asserting

mootness bears a ‘heavy burden.’” Rosebrock v. Mathis, 745

F.3d 963, 971 (9th Cir. 2014) (citation omitted).

The district court correctly found that CBC officials did

not meet the high standard to establish mootness. It based

this determination on two main points in the record. First,

the contents and timing of CBC’s communications regarding

sanctions undermine its current assertion that they will not

be reinstituted. Nothing in the April 2017 letter imposing

the sanctions suggested that they were time-limited. Indeed,

the letter specified that R.W. would be barred from the

Richland campus until he reenrolled in a CBC program

R. W. V. COLUMBIA BASIN COLL. 23

requiring his presence there. Reagan also testified in his

2019 deposition that R.W. would need to agree to comply

with the sanctions before he could return to CBC. Reagan’s

testimony shows that the sanctions remained in place after

winter 2018.

The district court highlighted factual similarities

between R.W.’s case and DeJohn v. Temple University, 537

F.3d 301, 309 (3d Cir. 2008), in which the Third Circuit held

that the university’s voluntary cessation of its original policy

did not moot plaintiff’s claim because the university’s

decision to defend the need for an unconstitutional policy

raised a “reasonable expectation” that it would reimplement

it. The court also noted the strategic timing of Reagan’s July

2021 letter, which was sent after more than three years of

litigation but only one month before defendants filed their

motion for summary judgment alleging mootness.

Second, Reagan and Thornton insist that they are unable

to engage in the same behavior, despite defending its

constitutionality, due to changes in Reagan’s responsibilities

and Thornton’s resignation. The district court noted that the

CBC officials cite no authority stating that the focus for the

voluntary cessation inquiry should be on the individual

actors’ subsequent authority rather than the allegedly

unlawful conduct. It also viewed the intervening changes to

CBC’s process for issuing sanctions as leaving open the

possibility that Reagan may regain his authority to impose

sanctions.

On this record, the district court correctly determined

that the sanctions against R.W. remained in force until the

issuance of the July 2021 letter and that the CBC officials

had not carried their burden. The officials have not shown

24 R. W. V. COLUMBIA BASIN COLL.

that they are unlikely to reinstitute sanctions against R.W.

absent court intervention.

In addition to injunctive relief preventing the CBC

officials from enforcing the original or equivalent sanctions,

prospective injunctive relief in the form of R.W.’s

reinstatement to the nursing program and the expungement

of negative information from his academic record remains

available. We have held that reinstatement is a form of

prospective injunctive relief. Doe v. Lawrence Livermore

Nat’l Lab’y, 131 F.3d 836, 840 (9th Cir. 1997). The CBC

officials contest this conclusion because Doe dealt with the

employment context and because they maintain that R.W.

was not officially suspended or expelled. These arguments

are unpersuasive. We see no reason to limit Doe to the

employment context. In addition, the record shows that

CBC officials removed R.W. from the nursing program and

barred him from campus due to his statements and that his

path to return remains uncertain. The officials have thus

effectively expelled R.W. from the nursing program

regardless of their chosen terminology.

Furthermore, the district court correctly determined that

a triable issue of fact exists regarding whether R.W. could

have passed his courses if CBC officials had not barred him

from campus. That dispute precludes summary judgment on

the issue of whether R.W. could receive expungement of his

failing grades. The potential for the court to order R.W.’s

reinstatement and the expungement of his failing grades is

thus an additional, independent basis for the conclusion that

R.W.’s Ex parte Young claim remains live.

C.

The district court correctly determined that Reagan is a

proper defendant under Ex parte Young because genuine

R. W. V. COLUMBIA BASIN COLL. 25

issues of material fact remain regarding his authority to order

the relief that R.W. seeks. Appellants frame this issue as part

of the Ex parte Young analysis because an official must have

the authority to implement injunctive relief for Ex parte

Young to apply.

For a suit to proceed under Ex parte Young, a plaintiff

must show that an injunction against a particular official

“would ‘significant[ly] increase’ the likelihood” of relief,

not that relief “is a ‘guarantee.’” Mecinas v. Hobbs, 30 F.4th

890, 900 (9th Cir. 2022) (quoting Renee v. Duncan, 686 F.3d

1002, 1013 (9th Cir. 2012)); accord id. at 903–04 (“The

‘connection’ required under Ex parte Young demands

merely that the implicated state official have a relevant role

that goes beyond ‘a generalized duty to enforce state law or

general supervisory power over the persons responsible for

enforcing the challenged provision.’” (citation omitted)); see

also Coal. to Defend Affirmative Action v. Brown, 674 F.3d

1128, 1134 (9th Cir. 2012) (holding that university official

had a “fairly direct” connection to enforcing university

policies). Neither our caselaw nor the out-of-circuit cases on

which the CBC officials rely 5 requires a higher showing of

5

In each case that CBC officials cite, the relevant official’s authority to

implement relief was precluded as a matter of law or based on the

undisputed factual record. See Boglin v. Bd. of Trs. of Ala. Agric. &

Mech. Univ., 290 F. Supp. 3d 1257, 1265 (N.D. Ala. 2018) (ruling that

the Board of Trustees could not grant reinstatement because a state

statute reserved power over hiring decisions to the university president);

Siani v. State Univ. of N.Y. at Farmingdale, 7 F. Supp. 3d 304, 317

(E.D.N.Y. 2014) (allowing case to proceed solely against university

president after ruling that terminated professor’s suit against fifteen

individual defendants “cast [plaintiff’s] claims too broadly for Ex parte

Young”); El-Ghori v. Grimes, 23 F. Supp. 2d 1259, 1266–67 (D. Kan.

1998) (ruling that the record showed that only the Kansas Board of

Regents, not the university president, could reinstate a professorship and

26 R. W. V. COLUMBIA BASIN COLL.

the official’s ability to grant relief before a suit can proceed

under Ex parte Young. For example, Ashokkumar v.

Elbaum, 932 F. Supp. 2d 996, 1010 (D. Neb. 2013),

undermines their argument, explaining that “Ex Parte Young

does not require that a defendant have full power to redress

a plaintiff’s injury; rather, it simply requires that the

defendant have some connection with the challenged

actions,” id. (internal quotation omitted).

Reagan was directly involved with the alleged

constitutional violation: he issued the no-trespass order

against R.W., initiated and conducted the student conduct

investigation that resulted in sanctions, and purported to

have lifted the sanctions when R.W. did not apply for

readmission. This record reflects contemporaneous

authority over R.W.’s presence on campus and enrollment at

CBC that satisfies the minimal connection required for Ex

parte Young. CBC officials contend that CBC has since

circumscribed the role of the Dean of Student Conduct. The

district court therefore rightly identified a material issue of

fact as to the current scope of Reagan’s authority. Because

neither the law nor the existing factual record precludes

Reagan’s authority to implement R.W.’s requested

grant tenure); Campbell v. City of Waterbury, 585 F. Supp. 3d 194, 203

(D. Conn. 2022) (ruling that a plaintiff who sued a prosecutor and court

clerk after police seized her car had alleged no facts to suggest that

defendants had custody of her car or the power to order its release);

Randolph v. Rodgers, 253 F.3d 342, 346 (8th Cir. 2001) (holding that

case was moot as to lower-level prison officials, against whom an

injunction would have no effect because inmate had been transferred to

a different facility, but allowing the case to proceed against the higher-

level official who had authority over the whole prison system); CSX

Transp., Inc. v. N.Y. State Office of Real Prop. Servs., 306 F.3d 87, 98–

99 (2d Cir. 2002) (considering individual defendants’ legal power and

duty to control assessment of taxes alleged to violate federal law).

R. W. V. COLUMBIA BASIN COLL. 27

injunctive relief if the district court were to order it, the

district court correctly allowed the suit to proceed against

him.

AFFIRMED in part; DISMISSED in part. Appellee

shall recover his costs on appeal.