Winfrey v. School Bd. of Dade County, Fla., 94-4256

• Decision Date: 07 July 1995
• Docket Number: No. 94-4256,94-4256
• Citation: 59 F.3d 155
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 673, 66 Empl. Prac. Dec. P 43,650, 32 Fed.R.Serv.3d 193, 101 Ed. Law Rep. 595 Frances WINFREY, Dr., Plaintiff-Appellant, v. The SCHOOL BOARD OF DADE COUNTY, FLORIDA, Dr. Tee Greer, Russell Wheatley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 155

59 F.3d 155

68 Fair Empl.Prac.Cas. (BNA) 673,

66 Empl. Prac. Dec. P 43,650, 32 Fed.R.Serv.3d 193,

101 Ed. Law Rep. 595

Frances WINFREY, Dr., Plaintiff-Appellant, v. The SCHOOL BOARD OF DADE COUNTY, FLORIDA, Dr. Tee Greer Russell Wheatley, Defendants-Appellees.

No. 94-4256.

United States Court of Appeals Eleventh Circuit.

July 7, 1995.

Louis M. Jepeway, Jr., Jepeway and Jepeway, P.A., Miami, FL, for appellant.

Phyllis Douglas, School Bd. of Dade County, Miami, FL, for appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before COX, Circuit Judge, HILL and REYNALDO G. GARZA ^*, Senior Circuit Judges.

PER CURIAM:

Dr. Frances Winfrey sued the School Board of Dade County, Florida, Dr. Tee Greer, the acting Superintendent of the School Board, and Russell Wheatley, the School Board's Assistant Superintendent of Alternative Education, alleging that they discriminated against her because of her race and gender. The district judge granted summary judgment in favor of Greer and Wheatley based on qualified immunity. Winfrey appeals, contending that the district court erred in granting Greer's and Wheatley's motions for summary judgment. Because there are still unresolved claims against the School Board in the district court, we find that the grant of summary judgment based on qualified immunity is not an appealable order and dismiss this appeal for lack of jurisdiction.

I. FACTS AND PROCEDURAL HISTORY

Winfrey, a white woman, alleges that the defendants removed her from her position as principal of Jan Mann Opportunity School, replaced her with a black male, and demoted her because of her race and gender. The complaint contains six counts. ¹ The defendants moved for summary judgment on all counts. The district judge, adopting a magistrate judge's report and recommendation, denied the motion as to Counts I, IV, V, and VI. However, the motion was granted as to Counts II and III.

The district court also granted summary judgment on the basis of qualified immunity in favor of Greer and Wheatley on all claims against them in their individual capacities. The sole issue Winfrey raises on appeal is whether the district judge properly granted Greer and Wheatley summary judgment because of qualified immunity.

II. DISCUSSION

As a court of limited jurisdiction, we are obliged to examine the basis for our jurisdiction, doing so on our own motion if necessary. Thus, before we may address the merits of this appeal, we must determine whether the district court's order is appealable. Save the Bay, Inc. v. The United States Army, 639 F.2d 1100, 1102 (5th Cir. Feb. 1981). ² Under 28 U.S.C. Sec. 1291, courts of appeals have jurisdiction over appeals from all final decisions of the district courts of the United States. Mathis v. Zant, 903 F.2d 1368, 1370 (11th Cir.1990).

Fed.R.Civ.P. 54(b) provides that in actions involving multiple claims or multiple parties, an order that finally disposes of fewer than all the claims, or disposes of the claims against fewer than all the parties, does not ordinarily terminate the action in the district court. Rule 54(b) provides, however, that such an order is appealable if the district court (1) directs entry of judgment as to those claims or parties, and (2) expressly determines that there is no just reason for delay. Fed.R.Civ.P. 54(b); Mullins v. Nickel Plate Mining Co., 691 F.2d 971, 973 (11th Cir.1982). In the absence of a certification by the district court that meets the requirements of Rule 54(b), a partial disposition of a multiclaim or multiparty action "does not qualify as a final judgment [under Sec. 1291] and is ordinarily an unappealable interlocutory order." Mullins, 691 F.2d at 973. Because the district court in this case did not certify its order under Rule 54(b), that rule does not provide us with a basis for jurisdiction in this appeal. ³

This court, however, does have jurisdiction over interlocutory appeals of certain "collateral" orders. The collateral order doctrine allows the immediate appeal of an interlocutory order under Sec. 1291 if (1) the order is "effectively unreviewable" on appeal after trial; (2) the order conclusively determines the disputed question; and (3) the order resolves an important issue completely separate from the merits of the action. Commuter Transp. Sys., Inc. v. Hillsborough County Aviation Auth., 801 F.2d 1286, 1289 (11th Cir.1986). District court orders denying summary judgment based on absolute or qualified immunity are immediately appealable under the collateral order doctrine even though other claims remain to be decided in the district court. Mitchell v. Forsyth, 472 U.S. 511, 525-28, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985).

This appeal, however, arises from an order granting summary judgment based on qualified immunity, not a denial of summary judgment. The Eleventh Circuit has not yet addressed whether an order granting summary judgment to fewer than all the defendants based on qualified immunity is reviewable under the collateral order doctrine. We now hold that we lack jurisdiction to review such an order.

Although in this case summary judgment has been granted to Greer and Wheatley, claims remain against the School Board. Unlike an order denying summary judgment based on qualified immunity, ⁴ "[a]n appellant's objection to the district court's order [granting summary judgment] is in no danger of becoming moot if appellate consideration is delayed until final judgment." Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir.1985) (holding that an order granting summary judgment based on absolute immunity to one defendant in a multidefendant case is not an appealable collateral order). Therefore, the district court's order is capable of being fully and effectively reviewed when the court issues a final judgment in this action. Accordingly, we hold that the collateral order doctrine does not apply in this case, and therefore we do not have jurisdiction to hear this appeal. See Clemens v. Kansas, 951 F.2d 287, 287-88 (10th Cir.1991) (order granting Eleventh Amendment immunity is not appealable while the suit remains pending against individual defendants); Branson v. City of Los Angeles, 912 F.2d 334, 335-36 (9th Cir.1990) (order dismissing Sec. 1983 claim on grounds of judicial immunity may be effectively reviewed after final judgment); Franzen v. Federal Land Bank, 897 F.2d 973, 974 (8th Cir.1990) (finding no jurisdiction over an appeal of an order granting summary judgment based on judicial immunity where claims remained against some...