Ronda Scott v. Advanced Pharmaceutical Consultants Inc ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14214
____________________
RONDA SCOTT,
Plaintiff-Appellant
Cross Appellee,
versus
ADVANCED PHARMACEUTICAL CONSULTANTS, INC.,
Defendant-Appellee,
CENTURION OF FLORIDA, LLC,
Defendant-Appellee
Cross Appellant.
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2 Opinion of the Court 21-14214
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cv-00571-RH-MJF
____________________
Before WILLIAM PRYOR, Chief Judge, and LUCK and MARCUS, Cir-
cuit Judges.
MARCUS, Circuit Judge:
At its simplest, this case is about whether Ronda Scott was
retaliated against by her former employer, Advanced Pharmaceu-
tical Consultants, Inc. (“APC”), and the company that contracted
with her employer, Centurion of Florida, LLC (“Centurion”) (to-
gether, “Defendants”), for engaging in protected activity. But, as it
turns out, we are without power to decide that question because
we lack jurisdiction to entertain this interlocutory appeal.
APC fired Scott in September 2018. Scott alleges it was be-
cause she reported to Centurion and APC that some of Centurion’s
prison pharmacies were logging Epclusa, a drug used to treat hep-
atitis C, as a narcotic even though it is not one, and because she
complained about dangerous “staff turnover” contributing to a
“complete system breakdown” in one prison. Scott claims that this
activity was legally protected, so she sued Centurion and APC in
the United States District Court for the Northern District of Flor-
ida in late December 2019. Her complaint alleged four counts: vi-
olations of the Florida Private Whistleblower Act (“FPWA”) and
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21-14214 Opinion of the Court 3
Florida Public Whistleblower Act (“FWA”) against Centurion and
APC, and violations of the False Claims Act (“FCA”) and inten-
tional interference with her advantageous business relations (“tor-
tious interference”) against Centurion.
Centurion and APC both moved for summary judgment on
all counts. The district court granted summary judgment on three
of them -- the FPWA, FWA, and FCA counts -- but denied summary
judgment on the tortious interference count. Pursuant to Federal
Rule of Civil Procedure 54(b), the district court directed the clerk
to enter a final judgment on the three resolved counts, and it certi-
fied that the fourth count satisfied the requirements of 28 U.S.C.
§ 1292(b) for immediate interlocutory review, should either party
file an appropriate application with this Court. We must now de-
cide whether the district court’s certification was proper as to
Scott’s direct appeal, and whether the requirements of 28 U.S.C.
§ 1292(b) have been met as to Centurion’s cross appeal.
After careful review and with the benefit of oral argument,
we conclude that the answer to both questions is no. We therefore
dismiss the appeals for lack of appellate jurisdiction.
I.
Centurion contracted with the Florida Department of Cor-
rections to supply health care services to inmates in some Florida
prisons. The contract required Centurion to engage a subcontrac-
tor to “provide certain consultant pharmacy services” to those pris-
ons. To fulfill this obligation, Centurion hired APC as an independ-
ent contractor.
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Scott formerly worked for APC as a regional consultant
pharmacist. Among other things, she oversaw the pharmacies in
several Centurion-serviced prisons to ensure compliance with ap-
plicable laws, rules, and regulations. APC fired Scott on September
10, 2018. Scott alleges it was because she spoke about the serious
conditions that she found at the prisons.
First, on May 16, 2018, Scott noted on Centurion’s required
Continuous Quality Improvement (“CQI”) form that she observed
a “complete system breakdown -- staff turnover.” Scott explained
that she made these comments to document her belief that licensed
personnel were being replaced by unlicensed personnel in the phar-
macy and that unlicensed personnel were performing tasks that
could not be performed without a license. Scott also complained
that inventory was not correct for certain medications and that
some doses and documentation were missing, specifically for
Epclusa, a medication used to treat hepatitis C. Scott testified that
this visit was “probably the worst [she had] ever seen [at] a facility
since [she] was promoted to the position as consultant pharmacist”
and that she thought “the pharmacy permit could have been easily
revoked on that day.”
Centurion disagreed with Scott’s comments and asked her
to change them on the CQI form. Centurion told her that she did
not need to log Epclusa because it was being monitored separately
pursuant to a court order. And Centurion thought the “complete
system breakdown” language was unfair, unprofessional, and not
responsive to the information requested by the CQI form. Scott
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complied and amended the CQI form even though she didn’t want
to. After changing the CQI form, Scott contacted the Department
of Health to ask if her license would be jeopardized if “another ac-
creditation agency inspected the facility” and disagreed with the
amended findings.
Scott continued to raise concerns about Epclusa in subse-
quent prison visits. Centurion grew frustrated and asked APC if
Scott could be replaced with another consultant pharmacist. APC
counseled Scott about her performance, but Scott said that she felt
she was being targeted and discriminated against. Scott was issued
a final written warning by APC for work performance issues on
August 29, 2018. According to APC, Scott then failed to appear at
work as scheduled on two occasions. As a result of these and other
“performance issues,” Scott was fired a short time later.
Believing her termination to be a form of retaliation for
speaking out, Scott initiated this action by filing a complaint in the
Northern District of Florida on December 27, 2019. Her complaint
alleged four counts: two whistleblower retaliation counts against
both Defendants under the FPWA and FWA, and a retaliation
count under the FCA and a common law tortious interference
count against only Centurion. The complaint contained a single
“prayer of relief ” requesting compensatory damages, injunctive re-
lief, prejudgment interest, attorney’s fees and costs, and punitive
damages “on all claims on which such damages may be presently
asserted.” The complaint did not indicate whether each form of
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relief is specific to a particular count, other than asserting that com-
pensatory damages are sought “on all Counts.”
Defendants moved for summary judgment across the board.
The district court granted summary judgment on three of the four
counts but left the tortious interference count open and outstand-
ing. In an amended summary judgment order, the district court
directed the clerk to enter a partial final judgment under Federal
Rule of Civil Procedure 54(b) “on the claims resolved by th[e] or-
der.” The trial court also certified that the still-pending tortious
interference count satisfied the requirements of 28 U.S.C.
§ 1292(b).
Scott timely appealed the district court’s grant of summary
judgment on the FPWA and FWA counts. Scott did not, however,
appeal the entry of summary judgment in favor of Centurion on
the FCA count. Centurion, in turn, cross appealed the district
court’s denial of summary judgment on the tortious interference
count.
II.
A certification under Rule 54(b) implicates the scope of our
appellate jurisdiction, so we must consider that issue sua sponte.
Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir.
1997) (per curiam). Rule 54(b) reads this way:
When an action presents more than one claim for re-
lief -- whether as a claim, counterclaim, crossclaim, or
third-party claim -- or when multiple parties are in-
volved, the court may direct entry of a final judgment
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as to one or more, but fewer than all, claims or parties
only if the court expressly determines that there is no
just reason for delay. Otherwise, any order or other
decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any
of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.
FED. R. CIV. P. 54(b).
The Rule requires two things: a final judgment, and a deter-
mination that there is “no just reason” to delay certifying the order
as final and immediately appealable. Id. We review de novo a dis-
trict court’s determination of the first prong -- whether a partial ad-
judication amounts to a final judgment. Lloyd Noland Found. v.
Tenet Health Care Corp., 483 F.3d 773, 778 (11th Cir. 2007). We re-
view for abuse of discretion the district court’s determination of
the second prong -- whether there is “just reason for delay,” id.(quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980)
(internal quotation marks omitted)), but only if the district court
“clearly and cogently articulat[es] its reasoning,” Ebrahimi, 114 F.3d
at 166. Without a clear and cogent statement of its reasons, “we
cannot defer to the district court[’s] determination and must assess
whether any obvious reasons support entry of the Rule 54(b) certi-
fication.” Id. at 167. “[C]ircumstances will be encountered only
rarely” that support Rule 54(b) certification. Id. at 166.
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A.
We begin with Scott’s direct appeal. Ordinarily we may
only hear appeals of “final decisions of the district courts.” 28
U.S.C. § 1291. A final decision “ends the litigation on the merits
and leaves nothing for the court to do but execute the judgment.”
Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983)
(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). The flip-
side of this is that typically we may not review an order of a district
court “adjudicating fewer than all the claims in a suit, or adjudicat-
ing the rights and liabilities of fewer than all the parties” because
such an order is not a “final judgment from which an appeal may
be taken.” Lloyd Noland, 483 F.3d at 777 (citing Lex Tex Ltd. v. Unifi,
Inc. (In re Yarn Processing Pat. Validity Litig.), 680 F.2d 1338, 1339
(11th Cir. 1982)). But there is a limited exception to the general
rule: we may entertain an appeal of an order that does not dispose
of all claims against all parties if the district court properly certifies
such an order as “final” under Rule 54(b). As we explain below, we
conclude that Scott’s appeal against Centurion fails the first prong,
and, because there is no final judgment against Centurion and it
would be a waste of judicial resources to hear Scott’s appeal against
APC separately, her appeal against APC fails the second.
To determine if there is a final judgment for purposes of a
Rule 54(b) certification, our task is to “scrutinize the district court’s
evaluation of the interrelationship of the claims, in order to decide
whether the district court completely disposed of one or more
claims.” Brandt v. Bassett (In re Se. Banking Corp.), 69 F.3d 1539, 1546
(11th Cir. 1995). “We have interpreted the first prong of Rule 54(b)
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to require that a judgment ‘disposes entirely of a separable claim
or dismisses a party entirely’ in order to be considered ‘final.’”
Lloyd Noland, 483 F.3d at 779 (quoting In re Se. Banking Corp., 69 F.3d
at 1547).
This analysis is easy with respect to APC. The district court’s
order disposed of all counts against APC and, in doing so, dismissed
it entirely from the action. This plainly amounts to a final judg-
ment under Rule 54(b). See id. Of course, that is not the end of
the story for APC. We are still required to determine that there is
“no just reason for delay” in certifying the district court’s order as
final and immediately appealable. And for the reasons we explain
below, we find that there is a powerful reason for delay: so that an
appeal of all Scott’s whistleblower counts against both Defendants
can be heard together.
The final judgment analysis concerning Centurion is trick-
ier. The district court’s order did not dispose of all of Scott’s counts
against Centurion; her count for tortious interference remains
open. So we must decide whether that count is separable from the
three dismissed ones.
“[T]he line between deciding one of several claims and de-
ciding only part of a single claim is very obscure.” In re Se. Banking
Corp., 69 F.3d at 1547 (citations omitted). Ultimately, the “touch-
stone for determining whether an entire ‘claim’ has been adjudi-
cated for the purposes of Rule 54(b) is whether that claim is ‘sepa-
rately enforceable’ without ‘mutually exclu[ding]’ or ‘substantially
overlap[ping]’ with remedies being sought by the remaining claims
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10 Opinion of the Court 21-14214
pending in the district court.” Lloyd Noland, 483 F.3d at 780 (altera-
tions in original) (quoting In re Se. Banking Corp., 69 F.3d at 1547).
“True multiplicity is not present where . . . the plaintiff merely pre-
sents alternative theories, drawn from the law of the same sover-
eign, by which the same set of facts might give rise to a single lia-
bility.” Schexnaydre v. Travelers Ins. Co., 527 F.2d 855, 856 (5th Cir.
1
1976) (per curiam) (citations omitted). In contrast, “[c]laims are
separable when there is more than one possible recovery, or if dif-
ferent sorts of relief are sought.” In re Se. Banking Corp., 69 F.3d at
1547 (quotation marks and citations omitted). The bottom line is
that even if a district court adjudicates one count of a complaint, if
another count seeks substantially similar relief, “the adjudication
of the first count does not represent a ‘final judgment’ because
both counts are functionally part of the same claim under Rule
54(b).” Lloyd Noland, 483 F.3d at 780.
By way of example, in Lloyd Noland we considered whether
a contractual indemnification count was separable from a com-
mon-law indemnification count where both counts stemmed from
the breach of a guaranty agreement concerning the sale of a hos-
pital. Id. at 775, 778–79. The district court granted summary judg-
ment on the contractual indemnification count but not on the com-
mon-law indemnification count. Id. at 781. We held that the two
counts were not separable because the common-law count
1
All Fifth Circuit decisions handed down before the close of business on Sep-
tember 30, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City
of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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“represented merely an alternate legal theory for a recovery identi-
cal to that sought by Count One” and the plaintiff “would be enti-
tled to recover its losses through indemnification only once, at
most.” Id. The key to our analysis was whether the relief sought
substantially overlapped so that it could only be recovered once no
matter the theory the plaintiff ultimately prevailed on. Because it
did, the counts were not separable. See also In re Se. Banking, 69 F.3d
at 1547 (“[I]f the possible recoveries under various portions of the
complaint are mutually exclusive, or substantially overlap, then
they are not separable claims.”).
In this case, the district court’s order contained no analysis
of whether Scott’s tortious interference count is separable from the
other three counts against Centurion. It is not. Scott’s intentional
interference count seeks substantially the same, mutually exclusive
relief as the relief sought in the other three dismissed counts: com-
pensatory damages to recoup her losses from being illegally fired.
Scott can only recover these compensatory damages once under
any of the theories that she presents. This means that, for present
purposes, the counts are not separable. See id. Indeed, her com-
plaint included only a single “prayer of relief ” that did not draw
any distinction between the relief sought for the different counts
alleged.
We acknowledge that Florida law permits punitive damages
on the tortious interference count and those damages are not
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2
available on the whistleblower counts. But this does not change
the calculus. Separability hinges on whether the relief sought “sub-
stantially overlap[s],” not on whether it is identical. See id. The
bulk of the relief Scott seeks -- compensatory damages for being
illegally fired -- substantially overlaps, and the complaint does not
distinguish between the relief sought on each count. Moreover,
without ultimately deciding the question, we are exceedingly skep-
tical that an award of punitive damages would be appropriate here.
Such an award requires that “the tort [] be committed in an outra-
geous manner or with fraud, malice, wantonness or oppression.”
Imperial Majesty Cruise Line, LLC v. Weitnauer Duty Free, Inc., 987
So. 2d 706, 708 (Fla. 4th DCA 2008) (citation and quotation marks
omitted). At least on the record developed thus far, there is nothing
that supports such a finding here.
In addition to seeking substantially overlapping relief, all
four counts also stem from the same core set of facts: according to
Scott, she complained about dangerous problems she identified in
Centurion’s prisons related to hiring unlicensed personnel to per-
form tasks that could only be performed by licensed personnel and
about improperly logging a medication used to treat hepatitis C.
In response to her complaints, APC and Centurion wrongfully
2
At oral argument, counsel for Scott suggested that the relief available under
the whistleblower and tortious interference counts also differs in that injunc-
tive relief is available on the former but not the latter. As a matter of Florida
law, counsel was mistaken. See Dade Enters. v. Wometco Theatres, Inc., 119 Fla.
70, 74 (1935) (explaining that injunctive relief may be available as a remedy for
tortious interference).
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harmed her by firing her or causing her to be fired. Whether Cen-
turion’s complaints to APC are characterized as “tortious interfer-
ence” or “retaliation” does not change the nature of Scott’s claimed
injury or the damages she seeks. Because the tortious interference
count is not separable from the dismissed counts, there is no final
judgment for us to review with respect to Centurion and we do not
have jurisdiction to hear Scott’s appeal as to that defendant.
B.
On to the second Rule 54(b) requirement. The second Rule
54(b) requirement bars a court from entertaining an interlocutory
appeal unless “the court expressly determines that there is no just
reason for delay” in certifying the district court’s order as final and
immediately appealable. FED. R. CIV. P. 54(b). Because there was
no final judgment against Centurion and we do not have jurisdic-
tion over Scott’s appeal against that defendant, we only analyze this
second requirement for APC.
In determining whether there is just reason to delay, “a dis-
trict court must take into account judicial administrative interests
as well as the equities involved. Consideration of the former is nec-
essary to assure that application of the Rule effectively preserves
the historic federal policy against piecemeal appeals.” Curtiss-
Wright, 446 U.S. at 8 (citation and quotation marks omitted). “The
federal concept of sound judicial administration and efficiency will
not normally be furthered by ‘hav[ing] piecemeal appeals that re-
quire two (or more) three-judge panels to familiarize themselves
with a given case, instead of having the trial judge, who sits alone
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14 Opinion of the Court 21-14214
and is intimately familiar with the whole case, revisit a portion of
the case if he or she has erred in part and that portion is overturned
following the adjudication of the whole case.’” Ebrahimi, 114 F.3d
at 167 (quoting Harriscom Svenska AB v. Harris Corp., 947 F.2d 627,
631 (2d Cir. 1991)).
The district court did not “clearly and cogently articulat[e],”
id. at 166, why it found no just reason for delay, so we cannot defer
to its determination; rather, we are required to “assess whether any
obvious reasons support entry of the Rule 54(b) certification,” id.
at 167. As we see it, no obvious reasons do. “[W]hen a sound basis
for the certification is not obvious and the district court merely re-
peats the language of the Rule or frames its certification in conclu-
sory terms, we have little choice but to dismiss the appeal for lack
of a final judgment.” Id. at 166–67. That is all we have in this case.
The district court’s analysis does no more than recite the legal
standard and offer the conclusion that it has been met. The court’s
analysis reads this way in full:
Federal Rule of Civil Procedure 54(b) provides that
when, as here, an action presents more than one
claim or involves multiple parties, the court may di-
rect entry of judgment as to one or more, but fewer
than all, claims or parties, but “only if the court ex-
pressly determines that there is no just reason for de-
lay.” I expressly determine that there is no just reason
for delay and thus direct entry of judgment on the
claims resolved by this order.
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This alone offers sufficient reason to find the Rule 54(b) certifica-
tion improper.
But there is more. We conclude that there are substantial
reasons to delay resolving Scott’s appeal of her whistleblower
counts against APC. Scott’s whistleblower counts against Centu-
rion and APC are identical. It makes good sense that appeals of an
order dismissing those counts should be heard together. But be-
cause there is no final judgment against Centurion, we lack the
power to adjudicate those counts against Centurion at this time. If
we were to adjudicate the same counts leveled against Centurion
and APC separately, our efforts would be wholly duplicative and
waste substantial judicial resources. Moreover, we run the risk of
inconsistent rulings if the panel hearing the appeal of the whistle-
blower counts against APC were to reach a different result than the
panel hearing the appeal of the same whistleblower counts against
Centurion. Thus, we also lack jurisdiction over Scott’s appeal of
her whistleblower counts against APC.
C.
Finally, we turn to Centurion’s cross appeal of the district
court’s denial of summary judgment on Scott’s tortious interfer-
ence count. Because the district court’s denial of summary judg-
ment is not a final judgment, Centurion seeks our review under 28
U.S.C. § 1292(b), which is one of the statutory exceptions to the
final judgment rule. Section 1292(b) reads this way:
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
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shall be of the opinion that such order involves a con-
trolling question of law as to which there is substan-
tial ground for difference of opinion and that an im-
mediate appeal from the order may materially ad-
vance the ultimate termination of the litigation, he
shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, per-
mit an appeal to be taken from such order, if applica-
tion is made to it within ten days after the entry of the
order: Provided, however, That application for an ap-
peal hereunder shall not stay proceedings in the dis-
trict court unless the district judge or the Court of
Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b) (emphasis added). The statute plainly requires
a party to apply to the court of appeals for permission to appeal
within ten days of the district court’s order. Id.; see also McFarlin v.
Conseco Servs., LLC, 381 F.3d 1251, 1253 (11th Cir. 2004). But Cen-
turion never made any such application to this Court. The failure
to file a timely application for review is a jurisdictional bar that pre-
cludes our review. Local No. 1279 v. Alabama, 453 F.2d 922, 924–25
(5th Cir. 1972). We therefore lack jurisdiction over Centurion’s
cross appeal too.
DISMISSED.