“No Participation, No Privilege”: The Eleventh Circuit Clarifies Standing for Interlocutory Appeals Based on Legislative Privilege

Introduction

In Pen American Center, Inc. v. Escambia County School Board (11th Cir. 2025), the United States Court of Appeals for the Eleventh Circuit addressed whether a school board and its individual members could immediately appeal a district court’s order compelling depositions, notwithstanding their claim of legislative privilege. The underlying suit—brought by authors, parents, and PEN America—contends that the Escambia County School Board’s removal/restriction of certain library books violated the First Amendment. When plaintiffs sought to depose the Board members to probe their motives, the Board attempted to invoke a “legislative privilege” to block discovery. The district court rejected that attempt, and the Board noticed an interlocutory appeal. The central issues before the Eleventh Circuit were:

Does the collateral order doctrine allow an immediate appeal from the denial of a discovery privilege?
Who has Article III standing to pursue such an appeal—the governmental entity, the individual legislators, or both?
What degree of participation below is required for a non-party (or nominal party) to have standing to appeal?

Summary of the Judgment

The Eleventh Circuit dismissed the appeal for lack of jurisdiction. It held:

The legislative privilege is personal to individual legislators; the Board as an entity possesses no such privilege and therefore suffers no cognizable injury from its denial.
The individual Board members did not “participate” in the district-court proceedings—merely signing declarations was insufficient—so they could not rely on the narrow non-party exception that sometimes permits immediate appeals.
Consequently, neither the Board nor its members had standing, and the Court lacked jurisdiction under 28 U.S.C. § 1291 and Article III.

Analysis

Precedents Cited

In re Hubbard, 803 F.3d 1298 (11th Cir. 2015) – Recognized that government officials may immediately appeal discovery orders denying governmental privileges under the collateral-order doctrine, provided the officials themselves are parties.
Kimberly Regenesis, LLC v. Lee County, 64 F.4th 1253 (11th Cir. 2023) – Dismissed appeal where county commissioners failed to participate below; clarified that privileges belong to officials individually.
Finn v. Cobb County Board of Elections & Registration, 111 F.4th 1312 (11th Cir. 2024) – Held that amicus participation is inadequate to create appellate standing for non-parties.
Flanagan v. United States, 465 U.S. 259 (1984) – Articulated the “final judgment rule.”
Wolff v. Cash 4 Titles, 351 F.3d 1348 (11th Cir. 2003) – Expounded on the requirement that appellants be “aggrieved” by the order.

The panel wove these cases into a coherent rule: Only a party or properly participating non-party who personally holds a privilege may immediately appeal under the collateral-order doctrine.

Legal Reasoning

Final-Judgment vs. Collateral Order. Discovery orders are ordinarily non-final. Yet orders denying governmental privileges can fall into the narrow collateral-order exception because the privilege would be “lost” once disclosure occurs.
Standing and Injury. Even if an order is appealable, an appellant must be “aggrieved.” Legislative privilege shields the individual legislator, not the legislative body. Therefore, the Board itself suffers no personal injury by disclosure of its members’ motives.
Participation Requirement. The Court reaffirmed that a non-party may appeal only if it participated meaningfully below—filing its own motion, intervening, briefing, or arguing. The Board members’ perfunctory declarations fell short of that threshold.
No Waiver of Jurisdictional Objections. Because subject-matter jurisdiction cannot be waived, plaintiffs’ earlier acquiescence to the Board’s motion in the district court could not confer appellate jurisdiction.

Potential Impact

This decision cements two practical takeaways for future litigants in the Eleventh Circuit:

Privileged persons must protect themselves. When legislative (or other governmental) privilege is invoked, each individual official should appear, intervene, or otherwise participate to preserve appellate rights.
Entities cannot “borrow” individual privileges. Municipal and county bodies may not assert personal privileges on behalf of their members to dodge discovery.
Strategic litigation behavior will adjust. Plaintiffs will likely serve individual subpoenas or deposition notices on lawmakers directly, forcing participation. Defendants must weigh the cost of appearance against potential disclosure.
Ripple beyond First Amendment cases. The rule applies equally to redistricting suits, voting-rights actions, and other contexts in which legislative motive is central.

Complex Concepts Simplified

Legislative Privilege: A doctrine shielding legislators from compelled testimony about their motives or mental processes when engaged in legislative functions.
Collateral Order Doctrine: A small class of decisions—separable from the merits and effectively unreviewable later—that are immediately appealable despite being interlocutory.
Standing: The constitutional requirement that a party seeking relief must have suffered (or be threatened with) a concrete injury traceable to the conduct challenged and redressable by the court.
Participation Threshold: To appeal, a non-party must intervene, move, brief, or otherwise engage in the trial-level dispute; mere letters or declarations are not enough.

Conclusion

In Pen American Center v. Escambia County School Board, the Eleventh Circuit drew a bright line: Legislative privilege belongs to legislators personally, and only those who actively defend that privilege in the trial court may immediately appeal its denial. Governmental bodies cannot cloak themselves in their members’ personal protections, and silent officials cannot sidestep the participation requirement. The ruling not only dismisses this appeal but also lays down a definitive procedural roadmap for future privilege disputes within the circuit. Litigants now know—appear early, intervene explicitly, or accept discovery.