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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-14186
____________________
KAREN FINN,
JULLIAN FORD,
HYLAH DALY,
JENNE DULCIO,
GALEO LATINO COMMUNITY DEVELOPMENT FUND, INC.,
et al.,
Plaintiffs-Appellees,
versus
COBB COUNTY BOARD OF ELECTIONS AND
REGISTRATION,
et al.,
Defendants,
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2 Opinion of the Court 23-14186
COBB COUNTY SCHOOL DISTRICT,
Intervenor-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-02300-ELR
____________________
Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
This is an attempted interlocutory appeal by the Cobb
County School District of a preliminary injunction order entered
on December 14, 2023, that bars the use of a 2022 redistricting map
for future Cobb County School Board elections. We don’t have
jurisdiction to decide the merits of the School District’s appeal. At
the time of the entry of the preliminary injunction, the School District was no longer a party in the case but was participating only as
a friend of the court, and it still is not a party to the case. It lacks
standing to appeal the order.
I.
The Cobb County School Board is the governing body of
the Cobb County School District. See Ga. Code Ann. § 20-2-50.
The School Board redrew its seven voting districts based on the
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23-14186 Opinion of the Court 3
2020 census. After the School Board voted 4–3 along racial and
party lines to adopt the redistricting map, it submitted that map to
the Georgia General Assembly. The map was included in House
Bill 1028, which passed both legislative houses and was signed into
law on March 2, 2022. See 2022 Ga. Laws 5274.
In June 2022 four registered Cobb County voters and a
group of non-profit organizations sued the Cobb County Board of
Elections and Registration and its then-director (the “Election Defendants”) under 42 U.S.C. § 1983, alleging that the 2022 redistricting map was based on unconstitutional racial gerrymandering in
violation of the Equal Protection Clause of the Fourteenth Amendment. The operative complaint claims that map “packed” Black
and Latino voters into certain voting districts to “dilute their political power” and preserve a majority white School Board. The complaint sought declaratory and injunctive relief to prevent the 2022
map from being used.
The Cobb County School District moved to intervene as a
defendant, and the district court granted that motion. Now a party
defendant, the School District moved for judgment on the pleadings on the grounds that it was not liable for any constitutional violation. Its primary argument was not that the 2022 map was constitutionally valid, but that the School District was not liable for any
infirmity in the map because it was the Georgia General Assembly
and not the School Board that enacted the challenged map. It also
argued that the plaintiffs could not show that the alleged constitutional violation resulted from a government policy or custom as is
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4 Opinion of the Court 23-14186
required for municipal liability under Monell v. Department of Social
Services of New York, 436 U.S. 658 (1978). In July 2023 the district
court entered an order granting the School District’s motion for
judgment on the pleadings based on Monell. (It rejected the School
District’s theory that the Georgia General Assembly was the only
proper defendant.) But for whatever reason the court did not then
enter a judgment to that effect.
Not willing to leave the fight, even after successfully asking
to do so, the School District continued to file motions and participate in discovery. That prompted the district court to enter a formal judgment in the School District’s favor, terminate it from the
docket, and enter oral and written orders prohibiting the School
District from attempting to participate in the case as if it were a
party.
Meanwhile, the plaintiffs and the Election Defendants,
which were still parties in the ongoing litigation, entered into a stipulated settlement agreement. As part of that agreement, the Election Defendants consented to the plaintiffs filing a motion for a preliminary injunction and agreed not to oppose the motion or take
any position on the merits of the racial gerrymandering claim. The
parties stipulated to a proposed remedial schedule that would theoretically give the Georgia General Assembly enough time to draw
a new electoral map that could be used in the 2024 election. They
also agreed that if the General Assembly failed to draw a new map
or if the map drawn by the General Assembly failed to meet the
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court’s approval, the court would supervise the implementation of
a remedial map with input from the parties.
The plaintiffs filed their motion for a preliminary injunction
on October 23, 2023. They asked the court to enjoin the use of the
2020 redistricting map in any future elections and give the Georgia
General Assembly the first opportunity to draw a new map. As
they had promised in the stipulated agreement, the Election Defendants did not oppose the motion. The School District had not
entered into that agreement and, as we have indicated, was no
longer a party at the time it was entered. On November 8, 2023,
the School District did obtain leave of court to oppose, as an amicus, the motion for a preliminary injunction.
On December 14, 2023, the district court granted the preliminary injunction. The court concluded that the plaintiffs were substantially likely to succeed on the merits of their racial gerrymandering claim involving the 2022 map and that the other preliminary
injunction factors also weighed in their favor. According to the
court, the evidence showed that race was likely the predominant
motivating factor in drawing the 2022 map and that drawing the
map based on race likely could not withstand strict scrutiny.
Consistent with the remedial plan stipulated to by the parties in their settlement agreement, the district court gave the Georgia General Assembly an opportunity to produce a new electoral
map that would pass constitutional muster. The court stated in its
preliminary injunction order that if the General Assembly did produce a new map, the parties could file objections to it, and the court
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would then decide whether to approve that map. The court’s goal
was to approve a new map by February 9, 2024, which the parties
agreed would leave enough time for the map to be “properly implemented” in time for the scheduled election.
Still not a party, and without seeking to reintervene for purposes of appeal, the School District promptly appealed the preliminary injunction order. On January 19, 2024, a motions panel of
this Court stayed that order (and its deadlines for approving any
remedial map) pending the outcome of this appeal.
Not long thereafter, on January 30, 2024, the Georgia General Assembly passed Senate Bill 338, which establishes a new electoral map for the Cobb County School Board. See Ga. S.B. 338 § 1
(2024). Governor Brian Kemp signed the bill into law on that same
day, and it became effective immediately. See id. § 2. The new law
contains not only a general repealer regarding any inconsistent
laws, see id. § 4, but also a specific provision that repeals “in its entirety” the 2022 Act containing the challenged redistricting map, see
id. § 3, which had been preliminarily enjoined.
II.
“[W]e have ‘a special obligation to satisfy ourselves of our
own jurisdiction’ before proceeding to the merits of an appeal.”
Gardner v. Mutz, 962 F.3d 1329, 1336 (11th Cir. 2020) (alterations
adopted) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
95 (1998)). There’s no dispute that the district court’s order granting the preliminary injunction is an interlocutory order that is immediately appealable. See
28 U.S.C. § 1292(a)(1); Noble Prestige Ltd.
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23-14186 Opinion of the Court 7
v. Galle, 83 F.4th 1366, 1374–75 (11th Cir. 2023). The threshold
question is whether the School District has standing to appeal that
order. 1 We review de novo questions of appellate standing. Kimberly Regenesis, LLC v. Lee County, 64 F.4th 1253, 1258 (11th Cir.
2023).
Under Article III of the Constitution, “[l]itigants must establish their standing not only to bring claims, but also to appeal judgments.” Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th Cir. 2003);
see Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 64 (1997). To establish appellate standing, a litigant must prove that it has (1) “suffered a concrete and particularized injury” (2) “that is fairly traceable to the challenged conduct,” (3) and that “is likely to be redressed
by a favorable judicial decision.” Kimberly Regenesis, 64 F.4th at
1259 (quotation marks omitted). While those three standing requirements resemble the standing requirements a plaintiff must
meet to bring a case in the first instance, see Spokeo, Inc. v. Robins,
578 U.S. 330, 338 (2016), the requirements are “not identical,”
1 There is also a second jurisdictional issue: whether the School District’s appeal has become moot in light of the Georgia General Assembly’s later enactment of a new electoral map and express repeal of the 2022 map that has been
preliminarily enjoined. But we are free to address standing and mootness in
whatever order we prefer. See Gardner, 962 F.3d at 1336 (“The Supreme Court
has clarified that a reviewing court can ‘choose among threshold grounds for
denying audience to a case on the merits.’”) (quoting Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 585 (1999)). We think it best in this case to start with
standing, and because we conclude that the School District lacks standing, we
need not address the mootness question. One could say that the mootness
question is moot.
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Wolff, 351 F.3d at 1353. For example, while standing to sue requires
an “injury caused by the underlying facts,” standing to appeal requires an “injury caused by the judgment.” Kimberly Regenesis, 64
F.4th at 1259 (quotation marks omitted). In other words, the litigant must have actually been “aggrieved by the judgment or order”
to appeal it. Wolff, 351 F.3d at 1354 (quotation marks omitted).
In addition to those standing requirements, there is a “well
settled” rule that “only parties to a lawsuit, or those that properly
become parties, may appeal an adverse judgment.” Kimberly Regenesis, 64 F.4th at 1260–61 (quoting Marino v. Ortiz, 484 U.S. 301, 304
(1988)); see Wolff, 351 F.3d at 1354 (“Generally, one not a party lacks
standing to appeal an order in that action.”) (quotation marks omitted); see also Arizonans for Off. Eng., 520 U.S. at 64–65 (“The decision
to seek review is not to be placed in the hands of concerned bystanders, persons who would seize it as a vehicle for the vindication
of value interests. An intervenor cannot step into the shoes of the
original party unless the intervenor independently fulfills the requirements of Article III.”) (citation and quotation marks omitted).
An amicus, as a nonparty, has no right to appeal. See 15A Charles
Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3902.3 (3d ed. 2024); see also United States v. Michigan, 940 F.2d 143, 165–66 (6th Cir. 1991).
And, to repeat, the School District is a nonparty. It was not
a named party, and though it became a party by intervention, it lost
party status when the district court granted its motion for judgment on the pleadings (which was months before the court entered
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the preliminary injunction).2 The School District asserts that it
nevertheless has standing to appeal the preliminary injunction under an exception to the “only a party may appeal” rule that we discussed in Kimberly Regenesis. See 64 F.4th at 1261.
In Kimberly Regenesis a county (which was a party defendant)
and county commissioner (who was a nonparty) appealed the district court’s denial of the commissioner’s immunity from discovery. Id. at 1255–56. We held that the county did not have standing
to appeal the immunity denial because the county was not itself
“aggrieved” by that order. Id. at 1259–60. We also held that the
commissioner could not appeal because he was not a party to the
case and did not participate in the district court proceedings. Id. at
1262–63. We discussed the possibility of an “exception” where
“someone not named a party to a suit (who hasn’t become a party)
may appeal,” but we did not decide “the precise contours” of the
potential exception because it would not have applied in that case
anyway. Id. at 1261–62. We explained that “whatever the test” for
a nonparty appeal exception, it would include the requirement that
the nonparty trying to appeal “must have at least participated in
2 See also Finn v. Cobb Cnty. Bd. of Elections & Registration, Nos. 23-13439 & 23-
13764, 2024 WL 470345, at *2 (11th Cir. Jan. 19, 2024) (holding in a different
appeal from the same case that we lacked jurisdiction to review the School
District’s challenge to the district court’s orders prohibiting it from participating in the case as a party because those were not appealable orders, and explaining that the district court’s grant of the School District’s motion for judgment on the pleadings “naturally terminated the School District’s status as a
party in the case”).
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the district court” proceedings, and the county commissioner in
that case had not done so. Id. That does not mean Kimberly Regenesis held that a nonparty who did participate in the district court
proceedings may appeal an order or judgment that resulted from
them.
To begin with, our discussion in Kimberly Regenesis about the
possibility of a nonparty appeal exception was only dicta. As we’ve
said many times, “[t]he holding of a case comprises both the result
of the case and those portions of the opinion necessary to that result.” See, e.g., United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir.
2019) (quotation marks omitted); United States v. Hurtado, 89 F.4th
881, 895 n.16 (11th Cir. 2023) (same). Any other statements that
are not necessary to the result are dicta and do not bind us. See
United States v. Shamsid-Deen, 61 F.4th 935, 949 n.1 (11th Cir. 2023)
(“Because the statement . . . was not necessary to the result in that
case, it was dicta.”); Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 1325,
1333 (11th Cir. 2016) (“[T]he statement is dicta because it was not
necessary to the result in [the earlier case].”); Auto. Alignment &
Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 725
(11th Cir. 2020) (“Our statement . . . in [an earlier case] was not
necessary to the decision we reached, so it is not part of our holding.”); Castillo v. Fla., Sec’y of DOC, 722 F.3d 1281, 1290 (11th Cir.
2013) (“[B]ecause those statements in [an earlier] opinion are not
necessary to the result in that case, . . . they are not the holding of
the decision.”); Powell v. Thomas, 643 F.3d 1300, 1304–05 (11th Cir.
2011) (“As we’ve said, dicta is defined as those portions of an opinion that are not necessary to deciding the case then before us,
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whereas holding is comprised both of the result of the case and
those portions of the opinion necessary to that result by which we
are bound.”) (quotation marks omitted); Edwards v. Prime, Inc., 602
F.3d 1276, 1298 (11th Cir. 2010) (“We have pointed out many times
that regardless of what a court says in its opinion, the decision can
hold nothing beyond the facts of that case. All statements that go
beyond the facts of the case . . . are dicta. And dicta is not binding
on anyone for any purpose.”) (citations omitted). Our statements
about the possibility of an exception that might allow a nonparty
who participated to appeal were not necessary to the result Kimberly Regenesis reached, which was that the nonparty who did not
participate could not appeal. That was the actual holding of the
case.
To reiterate, any suggestion we made in Kimberly Regenesis
about whether and when “a nonparty may sometimes appeal when
he has participated before the district court,” see 64 F.4th at 1256,
was nonbinding dicta. “As we have explained time and again: ‘[A]
decision can hold nothing beyond the facts of that case.’” United
States v. Birge, 830 F.3d 1229, 1233 (11th Cir. 2016) (alteration in original) (quoting Edwards,
602 F.3d at 1298 (collecting cases)); see
United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (“The
holdings of a prior decision can reach only as far as the facts and
circumstances presented to the Court in the case which produced
that decision.”) (quotation marks omitted).
Of course, dicta are not statements that dare not speak their
name. Dicta can be useful. See McDonald’s Corp. v. Robertson, 147
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F.3d 1301, 1314 (11th Cir. 1998) (Carnes, J., concurring) (“Dicta has
its place and serves some purposes.”). Our dicta in the Kimberly
Regenesis opinion did include the observation that some other circuits had allowed nonparties to appeal when: (1) the nonparty “actually participated” in the district court proceedings; (2) the nonparty has “a personal stake in the outcome” of the proceedings;
and (3) “the equities weigh in favor of hearing the appeal.” 64 F.4th
at 1261 (quoting EEOC v. La. Off. of Cmty. Servs.,
47 F.3d 1438, 1442
(5th Cir. 1995)) (emphasis omitted); see also, e.g., Northview Motors,
Inc. v. Chrysler Motors Corp., 186 F.3d 346, 349 (3d Cir. 1999) (recognizing that a nonparty may bring an appeal when “(1) the nonparty
has a stake in the outcome of the proceedings that is discernible
from the record; (2) the nonparty has participated in the proceedings before the district court; and (3) the equities favor the appeal”);
see also Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 384 (4th Cir.
2018) (focusing on the first two requirements); Curtis v. City of Des
Moines, 995 F.2d 125, 128 (8th Cir. 1993) (same); Frank v. Crawley
Petroleum Corp., 992 F.3d 987, 993 (10th Cir. 2021) (same); SEC v.
Wencke, 783 F.2d 829, 834 (9th Cir. 1986) (focusing on the first and
third requirements).
But, as in Kimberly Regenesis, we need not decide whether to
follow any of those other circuits and adopt a two- or three-requirement exception for nonparty appeals, because even if we did both
the first and third requirements would be the ruin of the School
District’s attempt to appeal in this case. See 64 F.4th at 1262.
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First, the appeal fails under the “participation” test of the
nonparty appeal exception. When our sister circuits have considered whether a nonparty “actually participated” in the district court
proceedings, they have focused on whether the nonparty has “actively participated in the particular stage of the district court proceedings that is challenged on appeal.” Sky Cable, LLC, 886 F.3d at
384; see e.g., Curtis,
995 F.2d at 128 (concluding that nonparties had
sufficiently participated in the underlying proceedings where they
“actively participated in post-trial executions on the judgment” being challenged, “made appearances to contest the issues they raise
here on appeal[,] and the district court treated them as parties by
accepting their briefs”); see also Kimberly Regenesis, 64 F.4th at 1263
(citing Sky Cable for its holding “that a nonparty could not appeal
where she did not participate in any manner in the post-judgment
proceedings at issue in the appeal”) (alteration adopted) (quotation
marks omitted). The School District did not participate as a party
or intervenor in the proceeding leading to the preliminary injunction it now attempts to appeal, because it had been dismissed from
the case months before. Instead, it participated as an amicus, which
does not qualify as participation for nonparty appellate standing.
See Wright, Miller, & Cooper, supra, § 3902.3.
Second, the appeal fails under the “equities” test of the nonparty appeal exception. The equities disfavor permitting the appeal
because the School District sought and obtained nonparty status at
its own urging by securing a dismissal of the claim against it. It
asked to be dismissed from the case, and it got what it asked for.
The parties have not identified — and we have not found — a
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published decision by any federal court applying a nonparty appeal
exception to give a self-determined nonparty the same right to appeal it would have had if it had not bailed out of the case. See Dopp
v. HTP Corp., 947 F.2d 506, 512 (1st Cir. 1991) (holding that the nonparty appellant lacked standing to appeal the trial court’s judgment
when it “departed from the case, on its own motion, long before
the judgment” was entered).
After throwing off its party status the School District sought
and obtained amicus status. To allow an unsatisfied amicus to appeal an order or judgment could encourage potential parties to
avoid intervention in favor of amicus status, hoping to receive the
same appellate rights as parties without exposing themselves to the
risks of party status (such as the payment of attorney’s fees). See
Microsystems Software, Inc. v. Scandinavia Online AB, 226 F.3d 35, 41
(1st Cir. 2000) (noting that litigants may not “evade potential liability by declining to seek party status and still expect to be treated as
parties for the purpose of testing the validity of an ensuing decree”)
(footnote omitted). The equities argue against encouraging that.
See id.
Also arguing against permitting the School District to appeal
is the Supreme Court’s admonition that when a nonparty has an
interest that is affected by a district court judgment, the “better
practice” is for such a nonparty to seek intervention for purposes
of appeal. See Marino, 484 U.S. at 304; see also Microsystems Software,
226 F.3d at 40 (“While there is an exception to the ‘only a party
may appeal’ rule that allows a nonparty to appeal the denial of a
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motion to intervene, the situation differs when intervention is
readily available. In that event, courts are powerless to extend a
right of appeal to a nonparty who abjures intervention.”) (citation
omitted). The School District could have but did not seek intervention for purposes of appeal. There is no persuasive reason to
allow the School District to ignore the “better practice” here. See
Marino, 484 U.S. at 304.
Because the School District flunks both tests, participation
and equities, we need not and do not decide what happens when a
nonparty putative appellant passes one but not the other.
This appeal is dismissed for lack of jurisdiction. Lacking jurisdiction, we express no opinion on the merits of the preliminary
injunction.
DISMISSED.
