R. W., individually and on behalf of his marital community v. COLUMBIA BASIN COLLEGE, a 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
No. 21-35995
United States Court of Appeals, Ninth Circuit
August 14, 2023
D.C. No. 4:18-cv-05089-RMP
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OPINION
Argued and Submitted February 16, 2023 Seattle, Washington
Filed August 14, 2023
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.
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
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
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.
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 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 Young1 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 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.
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.] 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
Physical and/or verbal abuse, threats, intimidation, harassment, online harassment, coercion, bullying, cyberbullying, retaliation, 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
On May 25, 2018, R.W. filed suit against CBC, Thornton, and Reagan. R.W. alleged a
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
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).
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
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 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
understood not as an exception to the final decision rule laid down by Congress in
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
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 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
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.
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.
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
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
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 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
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
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
An order satisfies the third
Party substitution under
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
Additional persuasive authority supports our determination that party substitution orders are not subject 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
We agree with these sources and hold that that an interlocutory order granting
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.‘” 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.
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 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 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
C.
The district court correctly determined that Reagan is a proper defendant under Ex parte Young because genuine 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 rely5 requires a higher showing of
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
AFFIRMED in part; DISMISSED in part. Appellee shall recover his costs on appeal.