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.