Richard Burt v. President of University of Florida
U.S. Court of Appeals for the Eleventh Circuit
Richard Burt v. President of University of Florida
Opinion
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 1 of 11
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12616
____________________
RICHARD BURT,
Plaintiff-Appellant,
versus
PRESIDENT OF UNIVERSITY OF FLORIDA,
DAVID E. RICHARDSON,
MARY WATT,
SIDNEY DOBRIN,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 2 of 11
2 Opinion of the Court 23-12616
D.C. Docket No. 1:22-cv-00075-MW-HTC
____________________
Before WILLIAM PRYOR, Chief Judge, GRANT, and KIDD, Circuit
Judges.
GRANT, Circuit Judge:
This civil procedure case looks a lot like a First Amendment
appeal. In fall 2021, the University of Florida decided it was time
to return to complete in-person instruction after lengthy “remote
learning” during the Covid-19 pandemic. Richard Burt, a tenured
professor of English, strongly disagreed with that administrative
choice—to say the least. He emailed his students that the
University was forcing him to return to the classroom against his
will, attaching for good measure an email thread between him and
the department chair. He also signed his email, “Herr Doktor Rev.
Professor Blind Burt Ph.4KUltaHD, Department of loser Studies,
Pharmakonology, and Cosmic Criticism.”
The University was unamused, in part because Burt had
already been chided for poor email etiquette; the plan was to
suspend him for five days without pay and require administrative
concessions like email professionalism. But instead of agreeing to
those conditions, Burt sued, claiming free speech and procedural
due process violations.
Even so, those issues will take a back seat here to a milder
matter of civil procedure: did Burt file his appeal on time? Burt says
yes—he filed less than thirty days after the district court separately
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 3 of 11
23-12616 Opinion of the Court 3
entered its final judgment. As relevant here, the deadline under
Federal Rule of Appellate Procedure 4(a)(1)(A) is thirty days after a
final judgment. But in Schuurman v. Motor Vessel Betty K V, we
created a rule defining the appeal period for dismissals like this one.
798 F.2d 442, 445 (11th Cir. 1986). Under that rule, the judgment
was considered final on the last day the court set for Burt to amend
his complaint. And that’s true even though Burt did not amend,
and even though the court did not issue a final order on that date.
Our rule is admittedly somewhat idiosyncratic. And maybe
even in tension with a Supreme Court case that preceded it—plus
the now-revised Federal Rules of Civil Procedure. But none of that
makes it any less our rule. So because Burt filed his notice of appeal
outside the Schuurman window, we lack jurisdiction to consider it.
I.
Richard Burt has been an English professor at the University
of Florida since 2003. 1 In August 2021, Burt remained worried
about teaching in the classroom, even more than a year into the
Covid-19 pandemic. He was sixty-seven years old, suffered from
several health challenges, and had received “only two of the three
vaccinations.”
So when the University announced to the faculty that
remote classes would not be allowed starting that fall, Burt was
1 Because this case comes to us on a motion to dismiss, we accept the
complaint’s factual allegations as true and construe them in Burt’s favor. Otto
Candies, LLC v. Citigroup Inc., 137 F.4th 1158, 1177 (11th Cir. 2025).
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 4 of 11
4 Opinion of the Court 23-12616
outraged. After skipping an English Department meeting to
discuss the transition back to in-person classes, plus some back and
forth with the department chair, Burt emailed his students to let
them know that his class would meet remotely. He attached a
statement from the faculty union’s president criticizing the
University’s “poor compliance with CDC guidelines on Covid.”
When one student complained and dropped the class, the
department chair again approached Burt on the issue—and Burt
again volleyed back emails with various questions and challenges,
the true nature of which are disputed by the parties.
Not disputed is what Burt did next. In a second email to his
students, he declared that “he had been ordered, by his Chair,
against his will, to teach his classes face-to-face.” He continued:
“You may stop reading here. If you want to learn what happened,
you may keep reading. YOU ARE NOT REQUIRED TO KEEP
READING. YOU MAY STOP HERE.” He then attached a
reproduction of his email exchange with the English Department
chair, and signed off with a nonsensical series of words: “Herr
Doktor Rev. Professor Blind Burt Ph.4KUltaHD, Department of
loser Studies, Pharmakonology, and Cosmic Criticism.”
The University acted swiftly, reassigning Burt’s courses to
another professor and placing him on paid administrative leave
pending investigation. Administrators ultimately determined that
he had violated two school regulations relating to disruptive
behavior and faculty misconduct, as well as the faculty’s collective
bargaining agreement with the University.
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 5 of 11
23-12616 Opinion of the Court 5
Based on these conclusions, the University proposed
suspending Burt for five days without pay. 2 The Dean of the
College of Liberal Arts and Sciences and the English Department
chair also signed an official letter to Burt, calling his behavior
“improper and unprofessional.” The letter instructed Burt to
comply with University policies; to ensure that all “student-related
email communications” were professional and relevant to course
content; to take classes in “email effectiveness”; and to use a correct
email signature block. After all, Burt had been “previously
admonished” for using the odd email signature block that he had
affixed to his latest email. Any future violations, the letter warned,
would result in his termination.
Burt sued, arguing that he had been punished for First
Amendment protected activity, and that the University’s
“kangaroo court proceeding” had violated his procedural due
process rights. The district court dismissed the complaint. It left
open the possibility that “this might be a different case” if Burt were
a professor of infectious diseases and quoted experts criticizing the
University’s Covid-19 policies during a lecture on the State’s
response to the pandemic. But because this dispute instead
involved “gratuitous information in a logistical e-mail [Burt] sent
in his capacity as a professor,” the First Amendment provided no
refuge. The court also made short work of Burt’s procedural due
process claim, rejecting it for failure to pursue state-law remedies
2 The parties agree that Burt has not yet been suspended.
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 6 of 11
6 Opinion of the Court 23-12616
before suing in federal court. See Laskar v. Peterson, 771 F.3d 1291,
1300 (11th Cir. 2014).
Though it dismissed the original complaint in its June 21
order, the court gave Burt until July 3 to file an amendment. The
order also instructed the clerk to enter judgment if Burt did not
amend by that date, “immediately triggering [his] right to appeal.”
Though Burt did not amend by that date, the clerk did not
enter judgment either. So on July 14—eleven days after the
deadline—the district court sua sponte issued another order.
Because the time for Burt to amend his complaint had “come and
gone,” the court instructed the clerk to enter judgment for the
defendants, closing the case. The clerk entered the order that same
day.
Burt filed his notice of appeal twenty-seven days later, on
August 10. The University moved to dismiss, arguing that the
appeal was untimely. We carried the motion to dismiss with the
case.
II.
“We review jurisdictional questions and the dismissal of a
complaint de novo.” Auto. Alignment & Body Serv., Inc. v. State Farm
Mut. Auto. Ins., 953 F.3d 707, 719 (11th Cir. 2020) (italics deleted).
III.
For a notice of appeal to be timely, that notice “must be filed
with the district clerk within 30 days after entry of the judgment or
order appealed from.” Fed. R. App. P. 4(a)(1)(A); see 28 U.S.C.
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 7 of 11
23-12616 Opinion of the Court 7
§ 2107(a). In most cases, the deadline is straightforward enough—
but not always. Concerned about the gamesmanship invited by
the lack of a final judgment when district courts allow leave to
amend in a dismissal order, this Court held in Schuurman v. Motor
Vessel Betty K V that when a court dismisses a complaint and
specifies a particular date by which the plaintiff may amend, the
dismissal order becomes a final judgment on that date. 798 F.2d
442, 445 (11th Cir. 1986). And when that order becomes final, it
triggers the right to appeal—whether or not the clerk actually files
an order dismissing the case. See id.
That holding turns out to matter a lot here. The district
court’s initial dismissal order mandated amendment by July 3, but
no order was entered dismissing the complaint until July 14. The
University says that under Schuurman the district court’s order
dismissing Burt’s complaint became a final judgment on July 3—
the deadline the court set to file an amended complaint. If so, Burt
had thirty days after that to appeal. Time ran out on August 2,
making his August 10 notice of appeal eight days too late.
Burt disagrees, pointing to the language of the dismissal
order. Because the court specifically directed the clerk to file a
separate dismissal order if Burt failed to amend, he says, that takes
the case out of our ordinary rule—meaning that the July 14
judgment, “not the expiration of the amendment period,” started
the appellate clock. Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 2
(emphasis added). Burt insists that this means his notice of appeal
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 8 of 11
8 Opinion of the Court 23-12616
was timely because it followed twenty-seven days after the July 14
final judgment, “well within the 30 days required.” Id. at 3.
Absent our Schuurman holding, we think that Burt would
likely be correct—a final judgment was not entered until July 14,
so the clock would start running then. But Schuurman offers no
exceptions to its deadline-for-amendment rule. Because Burt
appealed more than thirty days after the deadline the district court
set to amend, his appeal was untimely. See 28 U.S.C. § 2107(a); Fed.
R. App. P. 4(a)(1)(A).
No doubt, there are reasons to question Schuurman’s
continued validity. For one, it sits uneasily with the Supreme
Court’s holding twenty-eight years earlier that an order dismissing
a complaint with leave to amend was not a final decision. Jung v.
K. & D. Mining Co., 356 U.S. 335, 336–37 (1958). Instead, the Court
said, “another order of absolute dismissal” was required before the
judgment becomes final. Id. at 337 (quotation omitted). But under
Schuurman, that dismissal order can convert into a final judgment
after the fact. We are not the first to observe the tension between
our holding and the Supreme Court’s. Others, both on and off this
Court, have identified the same problem. One special concurrence
noted that our Schuurman rule “does solve the problem of
uncertainty, but it solves it differently than did the Supreme Court
in Jung.” In re United States, 844 F.2d 1528, 1538 (11th Cir. 1988)
(Kravitch, J., specially concurring); see also Britt v. DeJoy, 45 F.4th
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 9 of 11
23-12616 Opinion of the Court 9
790, 793, 797–98 n.9 (4th Cir. 2022) (en banc); WMX Techs., Inc. v.
Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).3
Though the facts of the two cases vary slightly, the serious
tension between their approaches perhaps should have caused the
Schuurman panel to hesitate before creating a different rule. Be that
as it may, under our Circuit’s prior-panel-precedent rule, “there is
never an exception carved out for overlooked or misinterpreted
Supreme Court precedent.” United States v. Fritts, 841 F.3d 937, 942
(11th Cir. 2016). And because Jung came decades before
Schuurman, it is self-evidently not an intervening precedent. See
United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993).
Yet another wrinkle has appeared since Schuurman—the
2002 amendments to Federal Rule of Civil Procedure 58. As before,
the Rule requires as a baseline that judgments be issued in a
separate document. See Fed. R. Civ. P. 58(a). But to offer certainty
about the timeline for appeal, the amended Rule adds that if no
3 While the circuits are divided on whether a district court dismissal granting
leave to amend is a final appealable order, Schuurman is a minority view. See,
e.g., Richards v. Dunne, 325 F.2d 155, 156 (1st Cir. 1963); Festa v. Loc. 3 Int’l Bhd.
of Elec. Workers, 905 F.2d 35, 36–37 (2d Cir. 1990); Weber v. McGrogan,939 F.3d 232
, 239–40 (3d Cir. 2019); Britt, 45 F.4th at 797–98 n.9; Wallace v. County of
Comal, 400 F.3d 284, 291(5th Cir. 2005); Azar v. Conley,480 F.2d 220, 223
(6th
Cir. 1973); Otis v. City of Chicago, 29 F.3d 1159, 1166 (7th Cir. 1994) (en banc);
Sapp v. City of Brooklyn Park, 825 F.3d 931, 935 (8th Cir. 2016); WMX Techs., 104
F.3d at 1136; Landmark Land Co. of Okla., Inc. v. Buchanan, 874 F.2d 717, 720
(10th Cir. 1989), abrogated on other grounds by Fed. Lands Legal Consortium ex rel.
Robart Est. v. United States, 195 F.3d 1190 (10th Cir. 1999); N. Am. Butterfly Ass’n
v. Wolf, 977 F.3d 1244, 1254, 1257 (D.C. Cir. 2020).
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 10 of 11
10 Opinion of the Court 23-12616
separate order is docketed, a final judgment is officially entered 150
days after a decision appears on a district court’s docket. See 2002
Advisory Committee Notes on Rule 58; Fed. R. Civ. P. 58(c)(2)(B). 4
So after 150 days the ordinary thirty-day deadline to appeal is
triggered. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A); Weber
v. McGrogan, 939 F.3d 232, 241 (3d Cir. 2019).
The 2002 amendments thus addressed the very mischief that
the Court in Schuurman fretted over. See 798 F.2d at 445–46.
Indeed, the Advisory Committee explained that the amendment
was designed “to ensure that appeal time does not linger on
indefinitely.” 2002 Advisory Committee Notes on Rule 58. And
for the sake of completeness, the Note underscored that a
“companion amendment of Appellate Rule 4(a)(7) integrates these
changes with the time to appeal.” Id.; see Fed. R. App. P. 4(a)(7)(A).
The amendment also carved out several exceptions—a list
of discrete circumstances where no separate document is required
to render a decision a final judgment. Fed. R. Civ. P. 58(a)(1)–(5). 5
That list includes, to name a few, orders ruling on a motion for
attorney’s fees under Rule 54, and for a new trial under Rule 59.
See id. 58(a)(3), (a)(4). Notably absent is any carveout for motions
to dismiss. But cf. Fogade v. ENB Revocable Tr., 263 F.3d 1274, 1286
n.9 (11th Cir. 2001) (“Under our circuit law there is one
4 Following the 2002 amendments, this change was reflected in Rule
58(b)(2)(B). See 2002 Advisory Committee Notes on Rule 58.
5 We note that this change was set out in Rule 58(a)(1)(A)–(E) after the 2002
amendments. See 2002 Advisory Committee Notes on Rule 58.
USCA11 Case: 23-12616 Document: 50-1 Date Filed: 08/20/2025 Page: 11 of 11
23-12616 Opinion of the Court 11
circumstance in which a Rule 58 separate judgment is not required
to start the running of the time for appeal.” (citing Schuurman, 798
F.2d at 445)). Nor do textual clues hint that the Rule’s list is
illustrative rather than exhaustive; the word “including” is not
there, which generally “makes clear that the authorization is not
limited to the specified remedies there mentioned.” West v. Gibson,
527 U.S. 212, 217 (1999).
Still, even if the amendments to Rule 58 undermine
Schuurman’s rationale, our post-2002 cases applying that decision
have reaffirmed it as binding. See, e.g., Auto. Alignment & Body Serv.,
Inc. v. State Farm Mut. Auto. Ins., 953 F.3d 707, 719–20 (11th Cir.
2020). So here too our precedent remains firm unless we change it
or the Supreme Court overrules it. See United States v. Sneed,
600 F.3d 1326, 1332 (11th Cir. 2010). Because neither has yet
occurred, we again enforce Schuurman’s rule, and dismiss Burt’s
appeal as untimely.
* * *
First Amendment cases often get serious attention, and
rightly so. But civil procedure, though perhaps less glamorous,
defines the rules of the road. We DISMISS Burt’s suit on the
ground that his notice of appeal was untimely.
Reference
- Status
- Published