Jordan v. Pugh

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 21, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

MARK JORDAN,

Plaintiff-Appellant,
v. No. 04-1095

MICHAEL V. PUGH, Warden, ADX,
Florence, Colo.; J. YORK, S.I.S.
Technician, ADX; R.E. DERR, Case
Manager, ADX; B. SELLERS , S.I.S.
Technician, ADX; and STANLEY
ROWLETT, Unit Manager, ADX,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 02-MK-1239 (PAC))

Shannon Wells Stevenson (Jonathan W. Rauchway with her on the briefs), Davis,
Graham & Stubbs, LLP, Denver, Colorado, for Plaintiff-Appellant.

Michael C. Johnson, Assistant United States Attorney (Johns W. Suthers, United
States Attorney, with him on the response brief, and William J. Leone, Acting
United States Attorney, with him on the supplemental response brief), Denver,
Colorado, for Defendants-Appellees.

Before SEYMOUR, BRORBY, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.

Bureau of Prisons regulations say inmates may not “act as [a] reporter” or

“publish under a byline.” 28 C.F.R. § 540.20(b). Plaintiff Mark Jordan is a

federal inmate who was punished for publishing under a byline after he

successfully submitted two articles for publication in a magazine. In this lawsuit,

Mr. Jordan challenges the BOP regulations on several grounds, including

unconstitutional overbreadth and vagueness. The district court granted the

Defendants’ motion for summary judgment on Plaintiff’s facial vagueness claim

and on the individual defendants’ qualified immunity defense, which left Mr.

Jordan with claims that the regulation is overbroad, that it is vague as applied,

that it violates his First Amendment rights as applied, and that BOP officials

punished him in retaliation for protected speech. After entering final judgment on

the facial vagueness claim and the qualified immunity defense, the court stayed

the litigation pending appeal of summary judgment.

Rule 54(b) of the Federal Rules of Civil Procedure permits the district court

to enter separate final judgment on one or more but fewer than all claims in a

lawsuit if the claims are separable and distinct from the remaining claims and if

there is no just reason for delay. Because the facial vagueness claim is not

separable and distinct from the claims that remain before the district court, we

lack subject matter jurisdiction and DISMISS the appeal.

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 I.

Mr. Jordan was a federal prisoner at the United States Penitentiary,

Administrative Maximum (ADX), in Florence, Colorado at all times relevant to

this lawsuit. During his incarceration at ADX, Mr. Jordan published two articles

in OFF! magazine, a publication of Off Campus College at the State University of

New York at Binghamton. After each article was published, officials at ADX

sanctioned Mr. Jordan for violating the following regulation:

(a) An inmate may write through “special mail” to representatives of
the news media specified by name or title (see § 540.2(b)).

(b) The inmate may not receive compensation or anything of value
for correspondence with the news media. The inmate may not act as
reporter or publish under a byline.

(c) Representatives of the news media may initiate correspondence
with an inmate. Staff shall open incoming correspondence from
representatives of the media and inspect for contraband, for its
qualification as media correspondence, and for content which is
likely to promote either illegal activity or conduct contrary to Bureau
regulations.

28 C.F.R. § 540.20. According to prison officials, Mr. Jordan’s publications

violated the rule that inmates may not “publish under a byline.”

Mr. Jordan describes his first article as an “experiential essay” in which he

criticized the criminal justice system and complained about his conditions of

confinement, including his treatment by BOP staff. Mr. Jordan submitted the

essay sometime before April 3, 2001, and it was published in the Spring 2001

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issue of OFF! under the title, “The Social Bonds of the Have-Nots.” The

publication credited “Mark Jordan” as the author. Id. at 3, paras. 4-5.

On April 3, 2001, several copies of the Spring 2001 issue of OFF! arrived

in the ADX mail room. The next day, Defendant Sellers issued an incident report

informing Mr. Jordan that

several pamphlets entitled OFF! were received at this institution’s
mail room . . . addressed to several inmates housed at this facility,
including yourself. [The pamphlet] contained an article written by
yourself with the byline, “Mark Jordan.” In accordance with . . . §
540.20(b), inmates may not act as a reporter or publish under a
byline. An inmate’s contact with the news media is regulated to
insure the orderly and safe operation of the institution.

Incident Report, Apr. 4, 2001, Motion to Dismiss, R. Doc. 47, Attachment 4, at 1.

The incident report charged Mr. Jordan with violations of Code 327,

“Unauthorized Contact with the Public,” and Code 399, “Conduct which Disrupts

or Interferes with the Security or Orderly Running of the Institution.” See id.; 28

C.F.R. § 541.13, tbl. 3. On April 6, 2001, the Unit Discipline Committee (“the

Committee”) found Mr. Jordan guilty of unauthorized contact with the public

under Code 327 but found him not guilty of disruption or interference with prison

security under Code 399. The Committee sentenced Mr. Jordan to 30 days of

commissary restriction, which it suspended pending 180 days of clear conduct.

After his disciplinary hearing, Mr. Jordan received his copy of OFF!.

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 During the disciplinary hearing, Mr. Jordan asked the Committee chairman,

Defendant Rowlett, what he had done to violate the regulation. Mr. Jordan

believed that submission of a manuscript was authorized by § 540.20(a) and (c),

which allow inmates and the news media to correspond. Mr. Rowlett told Mr.

Jordan that he could not publish articles under his own name because inmates who

might be offended by their contents could then identify the author, creating a

security risk. Mr. Jordan proposed that in the future he would use a pseudonym in

correspondence with the media in order to shield his identity. Mr. Rowlett told

him that would be good.

Mr. Jordan appealed the Committee’s decision to the warden, Defendant

Pugh, who denied the appeal on the basis of Mr. Jordan’s admission that he

“mailed a personal experiential essay [he] had written to the editor of a

publication titled ‘OFF.’” BP-229 Response, April 27, 2001, R. Doc. 47,

Attachment 1 at 2. On May 1, 2001, Mr. Jordan appealed the warden’s decision

to the regional office of the BOP. Id. at 3. The regional director denied the

appeal on the grounds that Mr. Jordan received due process in the disciplinary

action and the Committee’s ruling was supported by evidence that he was “the

reporter of an article,” despite the policy that an “inmate may not act as [a]

reporter or publish under a byline.” Reg. Admin. Remedy App. Resp., June 11,

2001, R. Doc. 47, Attachment 1, at 4. Mr. Jordan’s final appeal was denied on

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August 24, 2001. Central Office Admin. Remedy Appeal, Aug. 24, 2001, R. Doc.

47, Attachment 1, at 6.

In early September 2001, Mr. Jordan sent the editor of OFF! a second

essay, which criticized the DNA Backlog Elimination Act of 2000, U.S. law

enforcement schemes, and prison officials. Mr. Jordan requested that the essay

appear under the pseudonym “Josef Shevitz” if the editor chose to publish it. The

essay was published in the Fall 2001 issue of OFF! as “Beware! Surveillance

Society, by Josef Shevitz.” It has also appeared in translation in two German

publications, although Mr. Jordan never submitted the article to them for

publication.

Despite Mr. Jordan’s efforts to conceal his identity, prison officials

discovered that Josef Shevitz was his pen name. On November 9, 2001,

Defendant York issued an incident report charging Mr. Jordan with unauthorized

contact with the public under Code 327 for submitting an article “under the byline

of ‘Shevitz.’” Incident Report, Nov. 6, 2001, R. Doc. 53, Attachment E, at 1;

Jordan Decl., R. Doc. 52, at 6, para. 20. According to the report, “Jordan’s

sending of his article to [OFF!] constitutes an unauthorized contact with the

public. Jordan has been sanctioned for code 327 before and is aware that he is

not authorized to publish under a byline.” Incident Report, Nov. 6, 2001, R. Doc.

53, Attachment E, at 1.

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 After a disciplinary hearing, the Committee found Mr. Jordan guilty of

unauthorized contact with the public based on his “admission that [he] used the

byline of ‘Joseph Shevitz’ so he could not be identified as an inmate. He was

sentenced to 30 days’ commissary restriction and 14 days’ television and radio

restriction. His appeals to the warden, the regional director, and the BOP central

office were denied.

After exhausting his administrative remedies, Mr. Jordan filed a pro se

complaint challenging § 540.20 on several grounds. His Second Amended

Complaint listed six claims: (1) the regulation is unconstitutionally overbroad; (2)

the regulation is unconstitutionally vague on its face; (3) the regulation violates

the First Amendment as applied; (4) prison officials punished him in retaliation

for the exercise of his First Amendment rights; (5) the regulation is vague as

applied; and (6) the regulation violates his right to due process and is

fundamentally unfair. Second Amended Complaint, R. Doc. 39, at 10–19. He

requested a declaratory judgment that 28 C.F.R. § 540.20(b) is unconstitutional on

its face and as applied to him; an order enjoining enforcement of § 540.20(b),

compelling BOP officials to expunge all record of his violation, and enjoining the

Defendants from considering the violation in any future proceedings; and

nominal, compensatory, and punitive damages, and costs. Id. at 21–22.

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 Evaluating the complaint under Haines v. Kerner, 404 U.S. 519, 520–21

(1972), the district court discerned four claims for relief: (1) facial vagueness; (2)

facial overbreadth; (3) an as-applied First Amendment violation; and (4)

retaliation for the exercise of First Amendment rights. Order on Cross-Motions

for Summary Judgment, R. Doc. 85 at 2-3. 1 On cross-motions for summary

judgment, the district court granted the Defendants’ motion in part, holding that

the regulation was not unconstitutionally vague on its face and that the individual

defendants were entitled to qualified immunity from all of Mr. Jordan’s claims.

The court made a specific finding that there was no just reason to delay the entry

of final judgment on these two claims and entered partial judgment pursuant to

Rule 54(b). The court stayed the remaining claims pending appeal of the order

granting summary judgment.

II.

A.

“A statute can be impermissibly vague for either of two independent

reasons. First, if it fails to provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits. Second, if it authorizes or

1
In addition to the four claims identified by the district court, Mr. Jordan
claims that § 540.20(b) is vague as applied to his conduct. See Second Amended
Complaint, R. Doc. 39, at 17. The district court did not rule on this claim;
therefore, we assume that it is still pending before the district court.

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even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado,

530 U.S. 703, 732 (2000) (citing City of Chicago v. Morales, 527 U.S. 41, 56–57

(1999)). Because “we can never expect mathematical certainty from our

language,” Grayned v. City of Rockford, 408 U.S. 104, 110 (1973), a court

deciding whether a challenged statute provides fair notice often considers factors

such as the enactment’s purpose, the harm it attempts to prevent, whether there is

a scienter requirement, and the interpretations of individuals charged with

enforcement. See, e.g., id. at 110–14.

The district court focused on the question of notice to a person of ordinary

intelligence. Consulting dictionary definitions of the words in § 540.20(b), the

district court noted that “the regulation prohibits inmates from performing the

function of a reporter, i.e., from broadcasting news. It also prohibits inmates

from distributing news in printed form under the inmate’s name.” Order, R. Doc.

85, at 8–9 (citing Merriam-Webster’s Collegiate Dictionary (10th ed.)). Based on

this reading of the regulation, the court found that “[a] person of ordinary

intelligence could determine, in specific circumstances, what conduct is

prohibited by the regulation.” Id.

Mr. Jordan argues that § 540.20(b) is unconstitutionally vague and

ambiguous and that the district court’s conclusion fails to resolve the linguistic

uncertainties. The conclusion that § 540.20(b) prohibits inmates from

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“broadcasting news,” he argues, does not clarify the vague language of the

regulation because the court did not identify what conduct or contents are

prohibited, i.e., what counts as “broadcasting” and “news.” For example, were

his published articles “news” or mere “experiential essays”? Mr. Jordan similarly

disputes the clarity of the prohibition on publishing under a byline. The district

court concluded that “publish under a byline” is not vague because it prohibits

inmates from “distributing news in printed form under the inmate’s name.”

Order, R. Doc. 85, at 9. But this does not clarify whether pseudonymous

publications would violate the regulation. Mr. Jordan points out that under the

court’s definition, his second article would not qualify as publishing under a

byline because it was published under the name “Josef Shevitz,” which is not an

“inmate’s name.”

Mr. Jordan contends that this ambiguity is compounded by deficiencies

under the Grayned factors. First, he argues that the lack of a scienter requirement

exposes inmates to punishment based on the conduct of third parties. He

maintains that inmates do not decide whether to publish; publishers do. As a

result, he argues, the regulation punishes activity outside the inmate’s control, and

the ban on publication under a byline therefore fails to identify specific conduct

that inmates must avoid.

Second, Mr. Jordan argues that the stated purpose of the regulation

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contradicts its language, thereby confusing its meaning. According to the

regulations themselves, the restrictions on correspondence are intended to

“encourage[] correspondence that is directed to socially useful goals,” 28 C.F.R. §

540.10, and provide the public with access to information about prisons. Id. §

540.60. This confusion is aggravated, Mr. Jordan argues, by other regulations

aimed at inmate contact with the media. For example, the regulations expressly

permit members of the news media to interview inmates and to publish

information that those inmates give them. 28 C.F.R. § 540.61. Inmates are also

permitted to “prepare a manuscript for private use or for publication while in

custody without staff approval.” Id. § 551.81. A “manuscript” is defined as

“fiction, nonfiction, poetry, music and lyrics, drawings and cartoons, and other

writings of a similar nature.” Id. § 551.80. Manuscripts may not be circulated

within the prison, but they may be mailed as general correspondence. Id. §

551.82. Mr. Jordan maintains that the policy of encouraging inmates to

communicate with outside parties and to prepare “manuscripts” is inconsistent

with § 540.20(b)’s flat prohibition on acting as a reporter or publishing under a

byline.

Third, Mr. Jordan argues that the regulation fails to provide notice of the

harm it seeks to prevent. The Defendants argue that § 540.20(b) is intended to

serve “penological interests, the primary interest being maintaining security

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within a prison,” which is particularly important with respect to correspondence

because “articles about matters within a prison can create a danger of violence or

the threat of violence.” Motion to Dismiss, R. Doc. 24, at 10 (citing Martin v.

Rison, 741 F. Supp. 1406, 1414 (N.D.Cal. 1990)). Mr. Jordan questions the

congruence between this purpose and the breadth of the regulation, and he argues

that inmates cannot assess whether their conduct might cause the harm the

regulation seeks to prevent.

Finally, Mr. Jordan points to prison officials’ inconsistent interpretation of

the regulation. During his first disciplinary hearing, Defendant Rowlett told Mr.

Jordan that it would be a good idea to publish future essays under a pseudonym.

Rowlett’s advice notwithstanding, Defendants York and Derr punished Mr. Jordan

for publishing his second essay under a pseudonym. The Defendants dismiss the

conflicting interpretations as merely individual misunderstandings that do not

indicate vagueness in the regulation itself.

B.

Before we consider the merits, we must determine whether we have subject

matter jurisdiction over Mr. Jordan’s appeal. Our jurisdiction is invoked under 28

U.S.C. § 1291, which grants jurisdiction over appeals from final orders of the

district courts. The district court entered partial judgment under the authority of

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Rule 54(b), which provides:

When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party claim,
or when multiple parties are involved, the court may direct the entry
of a final judgment as to one or more but fewer than all of the claims
or parties only upon an express determination that there is no just
reason for delay and upon an express direction for the entry of
judgment.

Fed. R. Civ. P. 54(b). Rule 54(b) establishes three prerequisites for appeal of a

separate final judgment on fewer than all claims in a lawsuit: (1) multiple claims;

(2) a final decision on at least one claim; and (3) a determination by the district

court that there is no just reason for delay. See, e.g., 10 Wright, Miller & Kane,

Fed. Practice & Proc. § 2656, at 48–60 (3d ed. 1998).

To be final for purposes of Rule 54(b), an order must be “‘final’ in the

sense that it is ‘an ultimate disposition of an individual claim entered in the

course of a multiple claims action.’” Curtiss-Wright Corp. v. Gen. Elec. Co., 446

U.S. 1, 7 (1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436

(1956)). The controlling jurisdictional question is thus whether Mr. Jordan’s

facial vagueness claim is “distinct and separable from the claims left unresolved.”

Old Republic Ins. Co. v. Durango Air Serv., 283 F.3d 1222, 1225 (10th Cir. 2002)

(quoting Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001)).

Whether the judgment resolves a separate claim is a question of law subject to de

novo review. See Bruner, 259 F.3d at 1242 (citing Curtiss-Wright Corp., 446

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U.S. at 10). We hold that the district court’s grant of summary judgment did not

dispose of a separate claim for relief. The district court therefore erred in

certifying partial judgment, and we lack appellate jurisdiction.

For purposes of Rule 54(b), a claim comprises “all factually or legally

connected elements of a case,” Bruner, 259 F.3d at 1242, but there is no bright-

line rule to distinguish multiple claims, which may be appealed separately, from

multiple legal grounds in a single claim, which may not. See 10 Wright, Miller &

Kane § 2657 at 67–68. This distinction is based largely on practical concerns,

particularly the question whether a subsequent appeal of the claims before the

district court will require the court of appeals to revisit the same issues decided in

the first appeal. As the Seventh Circuit has explained,

The test for separate claims under the rule is whether the claim that
is contended to be separate so overlaps the claim or claims that have
been retained for trial that if the latter were to give rise to a separate
appeal at the end of the case the court would have to go over the
same ground that it had covered in the first appeal.

Lawyers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1162 (7th Cir.

1997); see also Sears, Roebuck & Co., 351 U.S. at 436 (claims are not distinct

under Rule 54(b) if they are inherently inseparable or cannot be decided

independently of each other).

To determine whether separate appeals will be redundant, courts consider

whether the allegedly separate claims turn on the same factual questions, whether

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they involve common legal issues, and whether separate recovery is possible. See

James Wm. Moore, et al., Moore’s Fed. Prac. 3d § 202.06[2] (3d ed. 1999)

(listing “(1) the factual overlap (or lack thereof) between the claims disposed of

and the remaining claims, and (2) whether the claims disposed of and the

remaining claims seek separate relief” as determining separate claims under Rule

54(b)), cited in Bruner, 259 F.3d at 1242; Gas-A-Car v. Am. Petrofina, Inc., 484

F.2d 1102, 1105 (10th Cir. 1973).

C.

The district court entered summary judgment in favor of the defendants on

Mr. Jordan’s facial vagueness claim, while retaining jurisdiction over his facial

overbreadth and as-applied claims. We conclude that these are not separate

claims. Although not identical, vagueness and overbreadth challenges in the First

Amendment context are alternative and often overlapping grounds for the same

relief, namely invalidation of the offending regulation. Overbreadth and

vagueness claims generally involve the same nucleus of facts, and require similar

analysis of the terms and reach of the challenged provision. Almost inevitably, if

vagueness and overbreadth are considered in two separate appeals, the court

“would have to go over the same ground that it had covered in the first appeal.”

Lawyers Title Ins., 118 F.3d at 1162.

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 The Supreme Court has “traditionally viewed vagueness and overbreadth as

logically related and similar doctrines.” Kolender v. Lawson, 461 U.S. 352,

358 n.8 (1983). The common rationale behind the two doctrines led one

commentator to conclude that “First Amendment vagueness doctrine—as distinct

from ordinary or non-First Amendment vagueness doctrine—is best

conceptualized as a subpart of First Amendment overbreadth doctrine.” Richard

H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 904 (1991).

Overbreadth and vagueness may overlap when the challenged statute is so unclear

in its scope that officials enforce it in an overbroad manner. Similarly, a vague

statute may be functionally overbroad if it causes affected persons to act as

though the statutory language had the broadest possible meaning. Another

commentator has gone so far as to assert “that when the Supreme Court has

spoken of the facial vagueness of statutes touching first amendment rights, it has

seldom if ever been referring to a constitutional vice different from the latent

vagueness of an overbroad law.” Note, The First Amendment Overbreadth

Doctrine, 83 Harv. L. Rev. 844, 873 (1970).

Facial challenges for vagueness and overbreadth involve a common

preliminary inquiry about the statute’s effect on constitutionally protected

activity. To mount a facial vagueness challenge, the litigant must show that the

potential chilling effect on protected expression is “both real and substantial.”

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Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975). Similarly, a facial

overbreadth challenge requires that “the overbreadth of a statute . . . not only be

real, but substantial as well, judged in relation to the statute’s plainly legitimate

sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973); see also Virginia v.

Hicks, 539 U.S. 113, 119 (2003). When considering “a facial challenge to the

overbreadth and vagueness of a law, a court’s first task is to determine whether

the enactment reaches a substantial amount of constitutionally protected conduct.”

Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 (1982). Under

either theory, a facial challenge is available only if the answer is yes. Both of Mr.

Jordan’s facial challenges therefore require the court to determine whether §

540.20(b)’s prohibition on “act[ing] as [a] reporter” and “publish[ing] under a

byline” affects a substantial amount of protected activity.

The similarity of the two doctrines is reflected in practice, as facial

challenges are commonly based on both overbreadth and vagueness. See, e.g.,

Flipside, 455 U.S. at 491 (rejecting a facial vagueness and overbreadth challenge

to a drug paraphernalia ordinance); Grayned, 408 U.S. 104 (1972) (rejecting a

facial vagueness and overbreadth challenge to a city anti-noise ordinance). In

Coates v. Cincinnati, 402 U.S. 611 (1971), the Court held an ordinance facially

unconstitutional on both overbreadth and vagueness grounds, concluding that it

was “unconstitutionally vague because it subjects the exercise of the right of

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assembly to an unascertainable standard, and unconstitutionally broad because it

authorizes the punishment of constitutionally protected conduct.” Id. at 614; see

also Dombrowski v. Pfister, 380 U.S. 479 (1965) (holding Louisiana’s Subversive

Activities and Communist Control Law unconstitutional on its face because the

definition of “subversive person” was “unduly vague, uncertain, and broad”);

Baggett v. Bullitt, 377 U.S. 360 (1964) (holding a loyalty oath statute facially

unconstitutional because of a similar definition of “subversive person”).

Even more telling are cases in which the Supreme Court has found it

unnecessary to address a plaintiff’s overbreadth claim on the ground that it had

already found the statute unconstitutionally vague. In City of Chicago v. Morales,

527 U.S. 41 (1999), the Court held that an anti-gang ordinance was

unconstitutionally vague on its face because it failed to set guidelines for

enforcement. Id. at 60. The plaintiffs also challenged the ordinance as facially

overbroad, but the plurality declined to reach the question. Id. at 55. Similarly,

in Smith v. Goguen, 415 U.S. 566 (1974), the Court found a Massachusetts flag-

misuse statute unconstitutionally vague on its face but declined to reach the

plaintiff’s overbreadth claim. Id. at 567–68. These cases demonstrate that facial

vagueness and overbreadth are two alternative theories for recovery on the same

claim, rather than two separate claims. If they were separate claims, the Court

would have had to consider both.

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 The fact that Mr. Jordan’s facial vagueness and overbreadth claims seek the

same relief also indicates that they are not distinct and separable claims, but

rather alternative theories for recovery on the same claim. A claimant presents

multiple claims for relief “when the possible recoveries are more than one in

number and not mutually exclusive.” 10 Wright, Miller & Kane § 2657, at 76; cf.

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572 (1980) (holding that

two challenges to the Secretary of Commerce’s release of shipping restrictions,

one seeking to overturn a particular exercise of authority and the other seeking to

invalidate his authority entirely, were separate claims under Rule 54(b)). Facial

vagueness and overbreadth challenges seek the same remedy—invalidation of the

regulation. See, e.g., Kathleen M. Sullivan & Gerald Gunther, First Amendment

Law 333 (1999) (“Vagueness challenges in the First Amendment context, like

overbreadth challenges, typically produce facial invalidations . . . .”). For

purposes of Rule 54(b), vagueness and overbreadth are alternative theories

underlying a single claim.

Rule 54(b) is not intended to provide a mechanism for splitting multiple

claims into separate lawsuits. Partial final judgment is intended to serve the

limited purpose of protecting litigants from undue hardship and delay in lawsuits

involving multiple parties or multiple claims. See Bruner, 259 F.3d at 1242

(citing Gas-A-Car, 484 F.2d at 1105). Application of the rule should preserve the

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“historic federal policy against piecemeal appeals.” Curtiss-Wright Corp., 446

U.S. at 8 (quoting Sears, Roebuck & Co., 351 U.S. at 438). Preventing separate

appeals of facial claims of vagueness and overbreadth is consistent with the

policy rationale behind Rule 54(b). To be sure, once parties have expended the

effort of briefing and argument on appeal, it may appear wasteful and inefficient

for the appellate court to decline to rule. But in the long run it will be less

wasteful and more efficient for district and appellate courts to adhere to the rule

that only separate and distinct claims can be isolated for appeal under Rule 54(b).

Interrelated legal claims and alternative theories for recovery should be litigated

together and appealed together.

D.

Mr. Jordan urges the Court to exercise pendent appellate jurisdiction over

the district court’s ruling that the Defendants are entitled to qualified immunity

on their damages claims. He concedes that we lack independent jurisdiction over

the qualified immunity ruling, but he maintains that the Court should exercise its

discretion to consider the issue because it is “inextricably intertwined” with his

facial vagueness claim. See Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th

Cir. 1995) (explaining that pendent appellate jurisdiction is appropriate “where

the otherwise nonappealable decision is ‘inextricably intertwined’ with the

appealable decision, or where review of the nonappealable decision is ‘necessary

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to ensure meaningful review’ of the appealable one”) (quoting Swint v. Chambers

County Comm’n, 514 U.S. 35, 51 (1995)). Because we lack jurisdiction over the

substantive claim, we have no occasion to exercise pendent appellate jurisdiction

over the qualified immunity defense.

III.

In sum, the district court’s grant of summary judgment did not address a

separable and distinct claim for relief. The facial vagueness challenge on appeal

and the facial overbreadth challenge that remains before the district court are

alternative legal theories that comprise a single claim for relief, namely, that the

BOP cannot punish Mr. Jordan under § 540.20(b) because it is unconstitutional on

its face. Because the district court did not enter judgment on an individual claim

for relief, certification of the judgment under Rule 54(b) was not proper, and we

lack subject matter jurisdiction. This appeal is therefore DISMISSED.

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