             Case: 15-13721     Date Filed: 08/31/2016   Page: 1 of 17


                                                                     [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-13721
                           ________________________

                      D.C. Docket No. 1:14-cv-24010-FAM


CHRISTOPHER L. PARKER,
MARWA MOUSSA, individually and
on behalf of others similarly situated,
EDUARDO ZEITUNE,
ANGEL LUIS LAZO-PEREZ,
ERIK BARTENHAGEN, et al.,


                                                          Plaintiffs–Appellees,

versus



AMERICAN TRAFFIC SOLUTIONS, INC., et al.,

                                                          Defendants,

CITY OF APOPKA,
CITY OF AVENTURA,
VILLAGE OF BAL HARBOUR,
CITY OF BOCA RATON,
CITY OF BOYNTON BEACH,
CITY OF BROOKSVILLE,
TOWN OF CAMPBELLTON,
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CITY OF CLERMONT,
CITY OF CLEWISTON,
CITY OF COCOA BEACH,
CITY OF CORAL GABLES,
CITY OF CORAL SPRINGS,
TOWN OF CUTLER BAY,
TOWN OF DAVIE,
CITY OF DAYTONA BEACH,
CITY OF DORAL,
VILLAGE OF EL PORTAL,
CITY OF FLORIDA CITY,
CITY OF FORT LAUDERDALE,
CITY OF GREEN COVE SPRINGS,
CITY OF GROVELAND,
CITY OF GULFPORT,
CITY OF HAINES CITY,
CITY OF HALLANDALE BEACH,
CITY OF HIALEAH,
CITY OF HIALEAH GARDENS,
HILLSBOROUGH COUNTY,
CITY OF HOLLYWOOD,
CITY OF HOLLY HILL,
CITY OF HOMESTEAD,
TOWN OF JUNO BEACH,
CITY OF KENNETH CITY,
TOWN OF KEY BISCANE,
CITY OF LAKELAND,
CITY OF LAUDERDALE LAKES,
CITY OF MAITLAND,
MANATEE COUNTY,
CITY OF MARGATE,
TOWN OF MEDLEY,
CITY OF MIAMI,
CITY OFMIAMI BEACH,
CITY OF MIAMI GARDENS,
CITY OF MIAMI SPRINGS,
CITY OF MILTON,
CITY OF NEW PORT RICHEY,
CITY OF NORTH BAY VILLAGE,
CITY OF NORTH MIAMI,

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CITY OF NORTH MIAMI BEACH,
CITY OF OCOEE,
CITY OF OLDSMAR,
CITY OF OPA-LOCKA,
ORANGE COUNTY,
TOWN OR ORANGE PARK,
CITY OF ORLANDO,
OSCEOLA COUNTY,
CITY OF PALATKA,
PALM BEACH COUNTY,
CITY OF PALM COAST,
CITY OF PEMBROKE PINES,
VILLAGE OF PALM SPRINGS,
CITY OF PORT RICHEY,
CITY OF SARASOTA,
CITY OF SOUTH PASADENA,
CITY OF ST. PETERSBURG,
CITY OF SUNRISE,
TOWN OF SURFSIDE,
CITY OF SWEETWATER,
CITY OF TAMARAC,
CITY OF TEMPLE TERRACE,
CITY OF WEST MIAMI,
CITY OF WEST PALM BEACH,
CITY OF WEST PARK,


                                                    Defendants–Appellants.


                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                           (August 31, 2016)




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Before WILSON and JULIE CARNES, Circuit Judges, and MOORE,* District
Judge.

JULIE CARNES, Circuit Judge:

       Plaintiffs sued various local government defendants (“Defendants”),

claiming unjust enrichment and seeking disgorgement of traffic fines Plaintiffs

allege were imposed in violation of Florida law. Defendants moved to dismiss the

claim, asserting sovereign immunity. The district court denied Defendants’ motion

to dismiss, and Defendants now appeal. After a careful review of the record and

controlling Circuit precedent, and with the benefit of oral argument, we dismiss

this interlocutory appeal for lack of jurisdiction.

                                    BACKGROUND

       Plaintiffs filed this class action against red-light camera vendor American

Traffic Solutions, Inc. (“ATS”), a company that contracts with Florida local

governments to install and operate unmanned cameras designed to capture video

images of traffic violations. Plaintiffs alleged in the complaint that they were

filmed committing a traffic violation on one of these cameras, and that they

subsequently received a traffic citation and paid a fine. According to Plaintiffs, the

citations were void, and the fines were thus unlawful, because the red-light camera

programs violated Florida law in several respects.

*
 Honorable William T. Moore, United States District Judge for the Southern District of
Georgia, sitting by designation.


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      Other plaintiffs subsequently filed similar actions in various state and federal

courts in Florida, and all of the actions were consolidated with this case under the

first-filed rule. Plaintiffs prepared an amended master complaint in the

consolidated action, asserting claims against Defendants, the Florida Department

of Revenue, and three red-light camera vendors, including ATS. The master

complaint alleges that Defendants unlawfully issued citations and collected fines

for traffic violations recorded by red-light cameras. Among other claims, it

includes an unjust enrichment claim in which Plaintiffs seek disgorgement of the

fines they paid to Defendants.

      The fines that are the subject of the unjust enrichment claim were imposed

pursuant to the Mark Wandall Traffic Safety Program (the “Wandall Act”), Florida

Statutes § 316.0083. The Wandall Act authorizes the use of red-light cameras, and

it creates a detailed procedure that must be followed by a local government when

issuing citations and imposing fines under this program. Id. Pursuant to the

Wandall Act, a Florida appellate court recently invalidated the red-light camera

program operated by the City of Hollywood. See City of Hollywood v. Arem, 154

So. 3d 359, 361 (Fla. Dist. Ct. App. 2014). The court in Arem held that

Hollywood’s program violated the Wandall Act because it unlawfully delegated

police power to a red-light camera vendor by allowing the vendor to (1) pre-screen

and determine which camera shots to send to Hollywood’s traffic enforcement


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officer and (2) issue traffic citations with the mere acquiescence of the

enforcement officer. Id. The court concluded that citations issued pursuant to

Hollywood’s red-light camera program were void and should be dismissed. Id. at

361, 365.

      In support of their unjust enrichment claim, Plaintiffs allege that Defendants

operated similarly unlawful red-light camera programs. Specifically, Plaintiffs

contend that Defendants violated the Wandall Act by improperly delegating pre-

screening authority to ATS and other red-light camera vendors. See id. at 365

(stating that, under Florida law, a local government “lacks the lawful authority to

outsource to a third-party vendor the ability to make the initial review of the

computer images of purported violations”). In addition, Plaintiffs assert that the

citations they received were unlawfully issued by red-light camera vendors rather

than by a Florida law or traffic enforcement officer. See id.

      Defendants moved to dismiss the unjust enrichment claim on the ground of

sovereign immunity. In support of their motion, Defendants argued that the unjust

enrichment claim was a “quasi-contract” claim barred by sovereign immunity

under Florida law. The district court denied the motion. It construed the unjust

enrichment claim as a claim to recover an “unlawful monetary extraction” rather

than as a quasi-contract claim. According to the district court, Florida sovereign

immunity does not apply to an unlawful extraction claim.


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      Defendants filed an interlocutory appeal of the district court’s denial of

sovereign immunity. Plaintiffs moved to dismiss the appeal for lack of jurisdiction

and for a frivolity determination and sanctions pursuant to Federal Rule of

Appellate Procedure 38. The motion was carried with the case, and this Court

heard oral argument on both the jurisdictional issue and the merits of the sovereign

immunity claim. For the reasons that follow, we now grant Plaintiffs’ motion to

dismiss the appeal for lack of jurisdiction, but deny their request for sanctions

under Rule 38.

                                   DISCUSSION

I.    Jurisdiction

      Our jurisdiction is limited to appeals from “final decisions” of the district

court. 28 U.S.C. § 1291. An order denying a motion to dismiss does not result in a

final decision. Thus, we lack jurisdiction to review such an order unless it is

“otherwise made appealable by statute or jurisprudential exception.” The Royalty

Network, Inc. v. Harris, 756 F.3d 1351, 1355 (11th Cir. 2014) (internal quotation

marks omitted). The only exception potentially applicable here arises under the

collateral order doctrine. See id. (citing Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 69 S. Ct. 122 (1949)). That doctrine permits the immediate appeal

of an interlocutory order if it (1) conclusively determines an important issue that is




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both (2) completely separate from the merits of the case and (3) effectively

unreviewable on appeal from a final judgment. Id.

      It is by now well-established that an order denying federal qualified

immunity satisfies the above requirements. See Schmelz v. Monroe Cty., 954 F.2d

1540, 1543 (11th Cir. 1992) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.

Ct. 2806, 2817 (1985)). Such an order conclusively determines whether a

government official is entitled to immunity from suit in his individual capacity, an

important issue that is separate from the merits of the case. Mitchell, 472 U.S. at

527–528, 105 S. Ct. at 2816. And as qualified immunity protects public officials

from the burden of litigation, rather than just liability, its protection is irretrievably

lost—in a ruling that is “effectively unreviewable on appeal from a final

judgment”—when a claim to qualified immunity is denied in an interlocutory

order. Id. at 525–27, 105 S. Ct. at 2814–16.

      Similarly, an order denying state official or sovereign immunity is

immediately appealable if state law defines the immunity at issue to provide

immunity from suit rather than just a defense to liability. See Tinney v. Shores, 77

F.3d 378, 383 (11th Cir. 1996) (“Alabama intended for its state officers to be

immune from suit. As such, the denial of summary judgment based on sovereign

immunity is properly before us on interlocutory appeal.”); Griesel v. Hamlin, 963

F.2d 338, 341 (11th Cir. 1992) (“Because sovereign immunity under Georgia law


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is an immunity from suit, . . . we have jurisdiction over the district court’s order

denying summary judgment based on sovereign immunity under Georgia law.”).

As with federal qualified immunity, the denial of state official or sovereign

immunity conclusively resolves an important issue that is separate from the merits

of the case. See Griesel, 963 F.2d at 340. If the state immunity is intended to

shield a governmental entity or official from suit rather than just liability, its denial

in an interlocutory order is also “effectively unreviewable after trial.” Id.

       This Court, however, has interpreted Florida sovereign immunity law to

provide only a defense to liability, rather than immunity from suit. CSX Transp.,

Inc. v. Kissimmee Util. Auth., 153 F.3d 1283, 1286 (11th Cir. 1998) (per curiam).

Based on that interpretation, we held in CSX that an order denying Florida

sovereign immunity is not immediately appealable under the collateral order

doctrine. Id. CSX decided the jurisdictional issue presented by this case, and it is

controlling as to that issue unless it has been “undermined to the point of

abrogation” by an intervening change in Florida sovereign immunity law. United

States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)1; see also United States v.

Clarke, 822 F.3d 1213, 1215 (11th Cir. 2016) (noting that a prior panel decision

interpreting state law is binding on the Court unless it has been abrogated by an

1
  A prior panel decision also can be overruled or abrogated by a decision of the United States
Supreme Court or this Court sitting en banc, see Archer, 531 F.3d at 1352, but Defendants
acknowledge that there is no Supreme Court or circuit authority to suggest that CSX is no longer
controlling.

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intervening decision of the relevant state court). Contrary to Defendants’

argument, there is no clear authority to suggest such a change has occurred in

Florida law.

       This Court’s decision in CSX was based on the Florida Supreme Court’s

discussion of the scope of Florida sovereign immunity in Department of Education

v. Roe, 679 So. 2d 756 (Fla. 1996). The question presented in Roe was whether the

Florida Department of Education was entitled to interlocutory review of an order

denying its claim to sovereign immunity in a negligence action. Id. at 757. The

Florida Supreme Court held that it was not, id. at 759, but its holding was less

important than its more general discussion of the nature of Florida sovereign

immunity for purposes of the collateral order doctrine. See CSX, 153 F.3d at 1286

(“[J]ust because a state court, under its own jurisdictional laws and rules, does not

have jurisdiction over a kind of interlocutory appeal, does not dictate a lack of

jurisdiction in this court.”).

       In the course of its discussion, Roe distinguished between sovereign

immunity asserted by a governmental entity like the Department of Education (and

the local governments in this case) and federal qualified immunity asserted by a

public official sued individually. Roe, 679 So. 2d at 759. Specifically, Roe noted

that (1) “qualified immunity is rooted in the need to protect public officials from

undue interference, whereas sovereign immunity is not” and (2) defending a suit is


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not likely to have the same “chilling effect” on a governmental entity as it would

on a public official sued individually. Id. Based on those differences, Roe

indicated that Florida sovereign immunity, unlike federal qualified immunity,

provides only a defense to liability rather than immunity from suit. Id. On that

point, Roe stated: “although the state will have to bear the expense of continuing

the litigation, the benefit of immunity from liability, should the state ultimately

prevail on the sovereign immunity issue, will not be lost simply because review

must wait until after final judgment.” Id. That statement was central to this

Court’s decision in CSX. CSX, 153 F.3d at 1286.

      The Florida Supreme Court has not overruled Roe or expressly altered its

definition of the scope of Florida sovereign immunity. In fact, Roe has been cited

favorably in several recent decisions that suggest its continuing validity. See Fla.

Fish and Wildlife Conservation Comm’n v. Jeffrey, 178 So. 3d 460, 465 (Fla. Dist.

Ct. App. 2015) (citing Roe for the proposition that Florida sovereign immunity

does not immunize a governmental entity from suit); Keck v. Eminisor, 104 So. 3d

359, 365–66 (Fla. 2012) (per curiam) (distinguishing Roe in a case involving

individual immunity under Fla. Stat. § 768.28). Keck is instructive. Keck held that

individual immunity granted to government employees under Florida Statutes §

768.28(9)(a) provides immunity from suit, and that an order denying it is thus

subject to interlocutory review. Keck, 104 So. 3d at 366. In so holding, Keck


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relied on the plain language of § 768.28(9)(a), which states that a government

employee cannot be “named as a defendant” in an action arising out of his

employment unless he acted maliciously or in bad faith. Id. Thus, Keck did not

overrule Roe, but rather distinguished it, emphasizing that Roe involved sovereign

immunity asserted by a governmental entity, and thus it did not raise the qualified

immunity-like considerations that underlie individual immunity and that warrant an

immediate appeal in the event of denial of that immunity. Id. at 365–66.

      Defendants argue that Roe should be interpreted narrowly, so that its

definition of Florida sovereign immunity is only applicable to immunity from tort

claims, which the state has partially waived by virtue of § 768.28, and not to

immunity from other types of claims, such as the unjust enrichment claim at issue

in this case. That argument is foreclosed by CSX, which interpreted Roe to stand

for the broad proposition that “Florida’s state sovereign immunity is only

immunity from liability.” CSX, 153 F.3d at 1286. Indeed, the governmental entity

in CSX sought immunity from a contractual indemnification claim rather than a tort

claim, yet this Court readily applied Roe to conclude that the denial of immunity

was not immediately appealable under the collateral order doctrine. Id. at 1284,

1286. Accepting Defendants’ proffered interpretation of Roe would thus require us

to hold that CSX was wrongly decided, rather than that it has been abrogated. We

are not authorized to make that holding. See United States v. Steele, 147 F.3d


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1316, 1317–1318 (11th Cir. 1998) (“Under our prior precedent rule, a panel cannot

overrule a prior one’s holding even though convinced it is wrong.”).

      Defendants also contend that Roe was abrogated by the Florida Supreme

Court’s decision in Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009). Their argument is

undermined by the fact that Wallace predated Keck and Jeffrey, both of which

reaffirmed Roe’s validity, and further weakened by the fact that Wallace did not

discuss or even cite Roe. It is not surprising that Wallace failed to mention Roe.

Wallace raised two issues: (1) whether a sheriff owed a duty of care to the plaintiff

pursuant to the undertaker’s doctrine and (2) assuming there was a duty, whether

the sheriff was sovereignly immune from tort liability under a discretionary

function analysis. Id. at 1043–44. Neither of those issues required a determination

as to whether Florida sovereign immunity provides immunity from suit or only a

defense to liability, or otherwise implicated Roe’s definition of the scope of

sovereign immunity.

      Because the lower court’s decision conflated the duty and immunity issues,

Wallace discussed at some length the distinction between a lack of duty—and thus

a lack of liability—under tort law and the presence of sovereign immunity. Id. at

1040, 1044–45. During the course of its discussion, Wallace off-handedly referred

to sovereign immunity as “immunity from suit” and as “bar[ring] an action.” Id. at

1044–45. But we do not believe that reference was intended to signal disapproval


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of Roe. Indeed, and consistent with Roe, Wallace also referred to sovereign

immunity, in the same discussion, as a “shield[] . . . from tort liability.” Id. at

1045. Thus, to the extent any conflict between Wallace and Roe can be implied, it

is tenuous at best and clearly insufficient to undermine CSX “to the point of

abrogation.” Archer, 531 F.3d at 1352; see also United States v. Kaley, 579 F.3d

1246, 1255 (11th Cir. 2009) (“In addition to being squarely on point, the doctrine

of adherence to prior precedent also mandates that the intervening . . . case actually

abrogate or directly conflict with, as opposed to merely weaken, the holding of the

prior panel.”).

      Finally, Defendants suggest that CSX is no longer controlling as a result of a

recent amendment to the Florida Rules of Appellate Procedure. See In re

Amendments to Florida Rule of Appellate Procedure 9.130, 151 So. 3d 1217 (Fla.

2014) (mem.). The amendment was made in response to Keck, discussed above, in

which the Florida Supreme Court directed the Florida Bar Appellate Court Rules

Committee to propose an amendment authorizing review of non-final orders

denying individual immunity under § 768.28(9)(a). Keck, 104 So. 3d at 366, 369.

The Rules Committee went beyond the directive of Keck and proposed an

amendment authorizing the review of non-final orders denying any type of

immunity. See In re Amendments to Florida Rule of Appellate Procedure 9.130,

151 So. 3d at 1217. As modified by the Florida Supreme Court, the amendment


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that ultimately was adopted authorizes review of non-final orders denying

individual or sovereign immunity under § 768.28(9), as well as orders denying

sovereign immunity generally. See Fla. R. App. P. 9.130(a)(3)(C)(x)–(xi).

       There could be any number of reasons why the Rules Committee amended

Rule 9.130 to allow an immediate appeal, in a Florida appellate court, of an order

denying Florida sovereign immunity. There is no basis for assuming the

amendment reflects a change in Florida law as to the scope of sovereign immunity,

and no authority to suggest that the amendment abrogated either Roe or CSX.

Moreover, Florida’s procedural rules do not govern whether an interlocutory order

is immediately appealable in this Court. See Griesel, 963 F.2d at 340 (recognizing

that “federal law determines the appealability” of an order denying state

immunity). As we made clear in CSX, our jurisdiction to review an order denying

state immunity does not depend on whether the order is appealable in the state

courts; our jurisdiction depends instead on whether, based on the state’s definition

of the immunity, its denial satisfies the requirements of the collateral order

doctrine. 2 CSX, 153 F.3d at 1286. CSX held that an order denying Florida


2
  For that reason, Beach Community Bank v. City of Freeport, 150 So. 3d 1111 (Fla. 2014), cited
by Defendants, does not alter our analysis. In Beach Community Bank, the Florida Supreme
Court assumed jurisdiction to review the trial court’s non-final order denying the City’s claim to
sovereign immunity and the First District Court of Appeal’s decision reversing the trial court.
The Florida Court’s decision to accept jurisdiction, however, was expressly based on the
amendment to Rule 9.130 permitting immediate review of an order denying sovereign immunity.
See id. at 1113 (“Because this case falls squarely within the new rule amendment, we determine
that the City should be entitled to the benefit of the new rule.”). But because Beach Community

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sovereign immunity does not meet those requirements. Id. Because CSX is still

controlling on that point of law, we lack jurisdiction over this appeal.

II.    Frivolity

       In their motion to dismiss, Plaintiffs request a frivolity determination under

Federal Rule of Appellate Procedure 38. Rule 38 provides that: “[i]f a court of

appeals determines that an appeal is frivolous, it may, after a separately filed

motion or notice from the court and reasonable opportunity to respond, award just

damages and single or double costs to the appellee.” Fed. R. App. P. 38. Rule 38

sanctions are appropriately imposed against appellants who raise “clearly frivolous

claims in the face of established law and clear facts.” Farese v. Scherer, 342 F.3d

1223, 1232 (11th Cir. 2003) (internal quotation marks omitted). For purposes of

Rule 38, a claim is clearly frivolous if it is “utterly devoid of merit.” Bonfiglio v.

Nugent, 986 F.2d 1391, 1393 (11th Cir. 1993).

       Although we have concluded that we lack jurisdiction over this appeal, the

jurisdictional argument raised by Defendants is not entirely meritless. The recent

Florida procedural amendments authorizing immediate review of an order denying

sovereign immunity in Florida courts, and some of the language in Wallace, raise

at least a colorable argument that CSX no longer precludes us from exercising



Bank merely applies the above newly-amended rule, and does not purport to re-define the nature
or scope of Florida sovereign immunity, it adds little to the analysis required of us under the
collateral order doctrine.

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jurisdiction over the appeal. Even though we were not ultimately persuaded by

that argument, we do not find it to be frivolous. Accordingly, we deny Plaintiffs’

request for sanctions under Rule 38.

                                  CONCLUSION

      For the reasons discussed above, we grant Plaintiffs’ motion to dismiss this

appeal for lack of jurisdiction and deny their motion for a frivolity determination

and sanctions under Rule 38.




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