[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13880

____________________

KIMBERLY REGENESIS, LLC, 

DAMASCUS TRADING COMPANY, LLC, 

Plaintiffs-Appellees,

versus

LEE COUNTY, 

a Florida political subdivision, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:19-cv-00538-SPC-NPM

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Before LUCK, LAGOA, and TJOFLAT, Circuit Judges.

PER CURIAM:

This case arises out of a sober home’s battle to rezone its 

property. When its efforts came up short, the sober home sued the 

county in federal court, alleging disability discrimination. As discovery got underway, the sober home served a notice of deposition 

in which it sought to depose one of the county commissioners who 

voted down its rezoning request. The county opposed the deposition, arguing that the commissioner was shielded from discovery 

by absolute quasi-judicial immunity. But the commissioner never 

objected to the deposition request or otherwise appeared before 

the district court. The district court found that the immunity didn’t 

apply. At that point, the county and the commissioner appealed. 

Their sole argument on appeal is that the district court erred by 

denying the commissioner quasi-judicial immunity.

The problem is that their appeal is not justiciable. First, the 

county may not appeal because it lacks appellate standing under 

Article III. To appeal, a party must be aggrieved by the district 

court’s order. But it’s the commissioner—not the county—who 

has the (alleged) immunity. So the county has suffered no injury 

and cannot challenge the district court’s denial of the immunity on 

appeal. Second, the commissioner may not appeal because he was 

not a named party to this case and did not become a party through 

intervention, substitution, or third-party practice. While a 

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nonparty may sometimes appeal when he has participated before 

the district court, the commissioner didn’t participate at all. Because the county has no appellate standing, and the commissioner 

did not participate below, we must dismiss this appeal.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

This case is about a sober home’s attempt to rezone its property. The sober home is situated on 5.15 acres in Lee County, Florida. Our plaintiffs, Kimberly ReGenesis, LLC and Damascus Trading Company, LLC, own and operate the facility. In 2014, the sober home applied to rezone the land. The goal was to rezone the 

property from agricultural to a special designation for treatment 

facilities. This would allow the sober home to expand and operate 

as a “treatment center and detoxification facility.” 

At first, things were looking good for the sober home. It met 

with Lee County staff members and put together an application for 

rezoning. The plan called for the creation of a “holistic medicine 

center” that would include ninety beds, a kitchen, nine dwelling 

units, a place of worship, and 9,000 square feet of medical offices 

and retail space. The county’s staff members and a hearing officer 

signed off on the application, recommending approval. 

 Some residents of Lee County weren’t happy with the prospect of this large facility opening up in their residential neighborhood. So a number of residents formed a political action committee to support commissioners who opposed the rezoning application. The political action committee also ran ads on local radio 

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stations. Some members of the community also spoke out against 

the sober home. 

In the heat of this public opposition, the sober home faced a 

public hearing before Lee County’s board of county commissioners. There were five commissioners: Brian Hamman, John Manning, Frank Mann, Larry Kiker, and Cecil Pendergrass. After the

hearing, the commissioners—overruling their staff members and 

the hearing officer—voted down the rezoning. The commissioners reasoned that the sober home’s project was “potentially destructive to the character and integrity of the residential neighborhood environment and therefore [did] not meet” the county’s land 

use requirements. 

The sober home challenged the commission’s ruling in state 

court. But the Florida circuit court and district court of appeal denied the sober home’s petition. When that failed, the sober home 

sent a letter to the county asking for a reasonable accommodation. 

The sober home asked the county to “grant a reasonable accommodation administratively to treat the proposed use as a permitted 

use or, in the alternative, to rezone the property.” About a month 

and a half later, the county denied the sober home’s request, explaining that the request would result in a “fundamental alteration” 

of its zoning scheme. 

That brings us to this case. On July 31, 2019, the sober home 

sued the county in federal court and brought one count under the 

Americans with Disabilities Act. It alleged that “[t]he county’s application of its zoning code to prevent use of the [sober home] by 

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[its] patients, and the denial of its request for reasonable accommodation, constitute[d] discrimination under Title II of the [Americans with Disabilities Act].” In other words, the sober home alleged that the county “discriminate[d] against . . . persons in recovery.” 

As discovery went underway, the sober home sought to depose—and get documents from—three of the county commissioners who denied the sober home’s rezoning application. To that 

end, the sober home served notices on the county for the depositions of those three commissioners (Commissioners Pendergrass, 

Mann, and Manning). The sober home also served a subpoena on 

Commissioner Manning. None of the commissioners were named 

parties to this case. 

The county moved for a protective order and to quash the 

subpoena. Its motion sought to “preclude the depositions” of the 

nonparty commissioners and to “quash the subpoena to Commissioner Manning.” The county raised three arguments. First, the 

county argued that the nonparty commissioners were cloaked in 

“quasi-judicial immunity” and thus “immune from discovery.” 

Second, the county asserted that, even if the commissioners were 

not immune, they should be shielded from the depositions under 

the “apex doctrine.” Third, the county contended that the depositions were “not proportional to the needs of the case.” The commissioners did not appear in the case or join the motion.

The sober home opposed the county’s motion. First, the 

sober home argued that immunity from suit does not mean 

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immunity from discovery. So, “even if the [c]ommissioners had 

absolute or qualified immunity, that [would] not render them immune from all discovery.” Second, the sober home asserted that 

the apex doctrine did not apply because the commissioners were 

not “high government officials . . . who had no personal 

knowledge of the events in question.” Third, the sober home 

maintained that it was “entitled to full discovery” of the commissioners’ “private and public communications” and the “factual bases” for their votes. 

A few things happened before a ruling on the county’s motion for a protective order. First, the magistrate judge held a hearing on the motion. A lawyer appeared “on behalf of the [d]efendant” Lee County (and another lawyer appeared for the sober 

home), but the nonparty commissioners did not appear. Second, 

both the sober home and the county later filed notices of supplemental authority to support their positions. Third, the magistrate 

judge then held a second hearing. Again, only the sober home and 

the county appeared. 

After the hearing, the magistrate judge ruled on the county’s 

motion for a protective order. The magistrate judge mostly denied 

the motion, allowing the depositions to go forward. First, the magistrate judge explained that quasi-judicial immunity didn’t apply because “this case is not a suit against the county commissioners.” 

Second, the magistrate judge found that the apex doctrine was inapplicable because the commissioners had “personal knowledge” 

of the facts. Third, the magistrate judge concluded that the sober 

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home had “a valid interest in deposing the commissioners on the 

limited issue of their communications with and influence (including campaign contributions) from the [political action committee]

that opposed the proposed zoning as well as the politically-involved neighbors who opposed the rezoning.” 

So the magistrate judge allowed the depositions to go forward but “limited [them] in time and scope.” As to time, the depositions for the three commissioners could “last no longer than 

four hours combined.” As to scope, the questioning would be limited to:

(1) any communications or other interactions with 

persons or entities other than county staff concerning 

the [p]laintiffs, [the property], or the [political action 

committee], since January 1, 2014; and (2) any monetary or in-kind contributions to any campaign committee or interest group by any opponent to the rezoning at issue.

The county objected to the magistrate judge’s order, but the district court adopted it.

1

 In its objections, the county again argued 

1 There’s only one difference between the district court’s order and the magistrate judge’s order. At one of the motion hearings, the sober home told the 

magistrate judge that it wanted to depose Commissioner Hamman instead of 

Commissioner Pendergrass. So the magistrate judge made that switch, ordering the depositions of Commissioners Hamman, Mann, and Manning. The 

county objected to that substitution. So the district court subbed back in Commissioner Pendergrass for Commissioner Hamman. 

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that the commissioners were shielded by quasi-judicial immunity 

and the apex doctrine. None of the commissioners objected. The 

district court found that the magistrate judge’s order was “well-reasoned” and adopted it, allowing the depositions to go forward. 

At that point, the county and the nonparty commissioners

filed a notice of appeal. This was the first time that the commissioners appeared in this case. While the appeal was pending, the 

commissioners filed a notice of suggestion of death, informing the 

court that two of the three commissioners—Commissioners Mann 

and Manning—had passed away. We dismissed those two commissioners from this appeal. But we noted that the appeal would 

continue as to Lee County and Commissioner Pendergrass. 

We also issued jurisdictional questions to the parties. We 

asked the parties to address “whether non-party Commissioners 

Frank Mann, John Manning, and Cecil Pendergrass have appellate 

standing to appeal from the district court’s denial of Lee County’s 

motion for protective order.” The parties responded. This opinion 

follows. 

STANDARD OF REVIEW 

“We review questions of [appellate] standing de novo.” 

LaTele Television, C.A. v. Telemundo Commc’ns Grp., LLC, 9 

F.4th 1349, 1357 (11th Cir. 2021) (reviewing a party’s “standing” to 

“appeal”).

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DISCUSSION 

In this interlocutory appeal, the county and the commissioner challenge the district court’s denial of quasi-judicial immunity. That sole issue frames our review. Because this appeal raises 

many jurisdictional—and other threshold—questions, we have the 

option of choosing which path to go down. See Sinochem Int’l Co. 

v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” (quotation omitted)). 

We rest our decision on two threshold grounds. First, we 

conclude that the county lacks standing to appeal because it was 

not aggrieved by the district court’s order denying the commissioner’s alleged immunity. Second, we hold that the commissioner 

may not appeal because he was not a party to this case and did not 

participate in the proceedings before the district court. 

The county

The county lacks Article III standing to appeal. “Litigants 

must establish their standing not only to bring claims, but also to 

appeal judgments.” Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 

(11th Cir. 2003). “To establish appellate standing, a litigant must 

‘prove that he has suffered a concrete and particularized injury that 

is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.’” United States v. Amodeo, 

916 F.3d 967, 971 (11th Cir. 2019) (quoting Hollingsworth v. Perry, 

570 U.S. 693, 704 (2013)). This, of course, resembles the standing 

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requirements plaintiffs must meet to bring a case in the first instance. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 

103–04 (1998) (noting that Article III standing to sue requires the 

“triad of injury in fact, causation, and redressability”). 

But, while they are “similar and overlapping, the doctrines 

of appellate standing and trial standing are not identical.” Wolff, 

351 F.3d at 1353. The “most obvious difference” is that “standing 

to appeal” requires an “injury caused by the judgment” while 

“standing to bring suit” requires an “injury caused by the underlying facts.” 15A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3902 (3d ed. & Supp. Sept. 2022). In other 

words, “[i]n the context of appellate standing, the primary meaning 

of the injury requirement is adverseness: ‘Only a litigant who is 

aggrieved by the judgment or order may appeal.’” Amodeo, 916 

F.3d at 971 (emphasis added) (quoting Wolff, 351 F.3d at 1354). 

The county lacks standing to appeal because it was not aggrieved by the district court’s order denying immunity. That’s because what’s at stake in this appeal is the commissioner’s quasi-judicial immunity, not the county’s immunity—and so the county 

cannot be aggrieved by the district court’s denial of the immunity. 

In other words, the county’s main argument before the district 

court—and its only argument on appeal—is that the commissioners were shielded from discovery by absolute quasi-judicial immunity. But official immunities (like quasi-judicial immunity) belong 

to the official, not the county. See Owen v. City of Independence, 

445 U.S. 622, 638 (1980) (holding that, when a municipality is sued, 

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“the municipality may not assert [an official immunity] as a defense 

to [its own] liability under [section] 1983”). 

The Supreme Court has made clear, for example, that “an 

official in a personal-capacity action may . . . be able to assert personal immunity defenses” (like quasi-judicial immunity) but that 

“these defenses are unavailable” in a suit against a municipality. 

Kentucky v. Graham, 473 U.S. 159, 166–67 (1985); see also Brandon 

v. Holt, 469 U.S. 464, 473 (1985) (“[A] municipality is not entitled 

to the shield of qualified immunity from liability[.]”). Put another 

way, “[t]he[] defenses of absolute immunity and qualified immunity are the official’s personal privileges for his official acts. They do 

not belong to the governmental entity, and the entity itself is not 

allowed to assert them.” Ying Jing Gan v. City of New York, 996 

F.2d 522, 529 (2d Cir. 1993). Indeed, courts have widely held that 

a municipality—or an official sued in his official capacity (which is 

the equivalent of a suit against the municipality)—cannot assert 

quasi-judicial immunity. See, e.g., Capra v. Cook Cnty. Bd. of Rev., 

733 F.3d 705, 710 (7th Cir. 2013) (“[M]unicipal entities are not entitled to absolute [quasi-judicial] immunity.”); VanHorn v. 

Oelschlager, 502 F.3d 775, 779 (8th Cir. 2007) (“[A]bsolute, quasijudicial immunity is not available for defendants sued in their official capacities.”); Turner v. Houma Mun. Fire & Police Civ. Serv. 

Bd., 229 F.3d 478, 483 (5th Cir. 2000) (“[D]efenses such as absolute 

quasi-judicial immunity, that only protect defendants in their individual capacities, are unavailable in official-capacity suits.”).

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What all of this means is that any official immunity—including quasi-judicial immunity—belongs to the commissioner, not the 

county. See Graham, 473 U.S. at 166–67; Owen, 445 U.S. at 638; 

Brandon, 469 U.S. at 473. The county conceded as much at oral 

argument. Because the immunity does not belong to the county, 

the county is not aggrieved by the district court denying the immunity. And so the denial of quasi-judicial immunity did not give 

the county standing to bring this interlocutory appeal challenging 

the denial of the commissioner’s alleged immunity. See Knight v. 

Alabama, 14 F.3d 1534, 1555–56 (11th Cir. 1994) (explaining that 

only a party who is “aggrieved” by the judgment or order may appeal).

Nor was the county aggrieved in any other way. The county 

suggested that it was aggrieved by the district court’s denial of the 

immunity because the depositions would “distract[] [the commissioners] from their job[s] and their duties.” We doubt that there 

could possibly be any distraction. The depositions, after all, were 

narrowly tailored. The district court limited the depositions to a 

total of four hours on two narrow topics. There’s no indication

that the depositions would take place during working hours or that 

the county would bear any costs for the depositions. In any event, 

since we’re past the motion-to-dismiss stage, the county had to present “by affidavit or other evidence specific facts” showing that it

was aggrieved by the district court’s order denying immunity. See 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (quotation omitted). It hasn’t done that.

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In the end, it’s the commissioner (not the county) who has 

the immunity. Because the county was not aggrieved by the district court’s order denying the immunity, it has no standing to appeal. See, e.g., Schultz v. Alabama, 42 F.4th 1298, 1317–18 (11th 

Cir. 2022) (dismissing appellants who were not “aggrieved by the 

[district court’s] decision”); Nationwide Mut. Ins. Co. v. Barrow, 29 

F.4th 1299, 1303 (11th Cir. 2022) (holding that a party “lack[ed] appellate standing” because the party “suffered no injury from the 

[district court’s] judgment”); Amodeo, 916 F.3d at 973 (holding that 

a party “lack[ed] standing” to appeal because the district court’s ruling “did not aggrieve—or even affect—[him]”). The county’s appeal must be dismissed.2

The commissioner

The commissioner may not appeal, either. “The rule that 

only parties to a lawsuit, or those that properly become parties, 

may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 

484 U.S. 301, 304 (1988); see also In re Leaf Tobacco Bd. of Trade 

of N.Y., 222 U.S. 578, 581 (1911) (“One who is not a party to a record and judgment is not entitled to appeal therefrom.”); Ex parte 

Cockcroft, 104 U.S. 578, 578–79 (1881) (“Inasmuch . . . as the 

2 There’s also reason to think that the county lacks prudential standing to 

appeal. See Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (“We have adhered 

to the rule that a party generally must assert his own legal rights and interests, 

and cannot rest his claim to relief on the legal rights or interests of third parties.” (quotation omitted)). We need not reach that issue, however, because 

the county lacks Article III standing to appeal.

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petitioner was not made a party to the suit, either by an express 

order of the court to that effect, or by being treated as such, his 

application for an appeal was properly denied.”); Ex parte Cutting, 

94 U.S. 14, 22 (1876) (“Only parties . . . can appeal.”). 

But who counts as a “party” to a case? First, there are the 

named parties. “A ‘party’ to litigation is ‘[o]ne by or against whom 

a lawsuit is brought.’” United States ex rel Eisenstein v. City of 

New York, 556 U.S. 928, 933 (2009) (quoting Black’s Law Dictionary 1154 (8th ed. 2004)). Second, “[o]ne who is not an original party 

to a lawsuit may of course become a party by intervention, substitution, or third-party practice.” Karcher v. May, 484 U.S. 72, 77 

(1987). Third, as we’ll discuss below, there’s an exception where a 

nonparty—who has not, for example, intervened—may still be 

considered a party who can appeal. See Devlin v. Scardelletti, 536 

U.S. 1, 14 (2002) (holding that “nonnamed class members . . . who 

have objected in a timely manner” before the district court “have 

the power to bring an appeal without first intervening”).

The commissioner was not a named party—and he did not 

become a party by intervening—so the question here is whether he 

falls into the third bucket. He doesn’t. Our sister circuits have 

adopted various tests for assessing when it is that a nonparty (who 

hasn’t intervened) may appeal. But, whatever the test, those courts 

have consistently required the nonparty to have participated in the 

case before the district court:

A person who is not a party to the proceedings below 

generally cannot appeal the court’s judgment. 

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However, courts have granted exceptions where the 

non-parties actually participated in the proceedings 

below, the equities weigh in favor of hearing the appeal, and the non-parties have a personal stake in the 

outcome. 

EEOC v. La. Off. of Cmty. Servs., 47 F.3d 1438, 1442 (5th Cir. 1995)

(cleaned up & emphasis added); see also, e.g., Northview Motors, 

Inc. v. Chrysler Motors Corp., 186 F.3d 346, 349 (3d Cir. 1999) (“Ordinarily, those who were not parties to the proceeding below may 

not appeal an order of a district court. However, this court has 

recognized that a nonparty may bring an appeal when three conditions are met: (1) the nonparty has a stake in the outcome of the 

proceedings that is discernible from the record; (2) the nonparty 

has participated in the proceedings before the district court; and (3) 

the equities favor the appeal.” (cleaned up)); Doe v. Pub. Citizen,

749 F.3d 246, 259 (4th Cir. 2014) (“The rule that only original parties and intervenors to the action before the district court may appeal an adverse judgment is not absolute. We have recognized an 

exception to the general rule that permits a nonparty to appeal a 

district court’s order or judgment when the appellant (1) possessed 

an interest in the cause litigated before the district court and (2) 

participated in the proceedings actively enough to make him privy 

to the record.” (cleaned up)); Curtis v. City of Des Moines, 995 F.2d 

125, 128 (8th Cir. 1993) (“Only a properly named party may initiate 

an appeal, and those who neither intervene or otherwise attain 

party status may not appeal a district court’s judgment. There is, 

however, a recognized exception to this rule, where a person has 

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an interest in the cause litigated and participated in the proceedings 

actively enough to make him privy to the record.” (cleaned up)); 

SEC v. Wencke, 783 F.2d 829, 834 (9th Cir. 1986) (“Although persons who were not parties of record before the district court usually may not appeal that court’s orders or judgment, we have allowed such persons to bring appeals in cases where: (1) they participated in the district court proceedings, and (2) the equities 

weigh in favor of hearing the appeal.”); Frank v. Crawley Petroleum Corp., 992 F.3d 987, 993 (10th Cir. 2021) (“The rule that only 

parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled. But this general rule has 

exceptions, as when a non-party possesses a unique interest in the 

outcome of the case and actively participates in the proceedings relating to that interest.” (cleaned up)); Broidy Cap. Mgmt. LLC v. 

Muzin, 61 F.4th 984, 991 (D.C. Cir. 2023) (noting that “only parties 

can appeal an adverse underlying order or judgment” but that “the 

label ‘party’ applies also to those bound by an underlying order 

who participated in the trial court”).

While we need not decide here the precise contours of when 

it is that someone not named a party to a suit (who hasn’t become 

a party) may appeal, we agree with our sister circuits that the nonparty must have at least participated in the district court. See 

Devlin, 536 U.S. at 8, 10 (allowing a nonparty to appeal when the 

nonparty was “bound by the order from which [he was] seeking to 

appeal” and participated in the district court under “the applicability of various procedural rules”). It is only by participating that we 

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can assure ourselves that a nonparty has become “privy to the record,” United States ex rel. Louisiana v. Boarman, 244 U.S. 397, 402 

(1917) (“[N]o person can . . . appeal . . . to reverse a judgment who 

is not a party or privy to the record.” (cleaned up)), and has been 

“treated” as a party by the district court, Cockcroft, 104 U.S. at 579.

Here, the commissioner didn’t participate in the district 

court. The sober home served a notice of deposition seeking to 

depose the commissioner. But the county—not the commissioner—moved for a protective order. The county appeared at 

hearings on that motion. The county filed a notice of supplemental 

authority in support of the protective order. And the county then 

objected to the magistrate judge’s order. The commissioner didn’t 

do any of these things. Indeed, both the magistrate judge and the 

district court were clear that it was the county’s motion for a protective order, not the commissioner’s. The commissioner finally 

appeared in the case—for the first time—in the notice of appeal. 

Because the commissioner wasn’t a party, didn’t intervene, and 

didn’t participate in the district court, he cannot appeal the district 

court’s order.

Other courts have found that a nonparty may not appeal in 

similar circumstances. Take Texas Brine Co. & Occidental Chemical Corp., 879 F.3d 1224 (10th Cir. 2018), for example. There, 

Texas Brine (a well operator) brought a cross-claim against Oxy (a

land owner) and sought $6.5 million for the work a consulting firm 

performed for it. Id. at 1226. To verify the costs of that consulting 

work, Oxy issued a subpoena duces tecum to the nonparty 

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consulting firm. Id. Texas Brine moved to quash that subpoena. 

Id. at 1227. The district court denied Texas Brine’s motion in part. 

Id. And Texas Brine appealed. Id. at 1228. What makes Texas 

Brine similar to our case is that the nonparty consulting firm—who 

hadn’t moved to quash—also filed a notice of appeal. Id. at 1228 

n.4. 

The Tenth Circuit held that the nonparty couldn’t appeal. 

Id. The court explained that, “[i]n general, only parties to a lawsuit 

or those who properly become parties may appeal.” Id. “The exception to this rule,” the court said, “is where the nonparty [1] has 

a unique interest in the litigation and [2] becomes involved in the 

resolution of that interest in a timely fashion both at the district 

court level and on appeal.” Id. (cleaned up). The problem in that 

case was that, even if the consulting firm “ha[d] a unique interest 

in th[e] litigation, it plainly fail[ed] to meet the second prong of

th[e] test.” Id. “Even though [the consulting firm] could have filed 

a motion to quash . . . , it did not.” Id. The consulting firm did 

include an “affidavit attached to Texas Brine’s motion to quash the 

subpoena” stating that the consulting firm “objected to the subpoena.” Id. But that wasn’t enough. The consulting firm “did not 

become involved in [the] case in a timely fashion at the district 

court level” and so the Tenth Circuit couldn’t “review [the consulting firm’s] challenge to the district court’s order.” Id.

Our case is just the same. The sober home (who was a 

party) served a notice to depose the commissioner (who was not a 

party). The commissioner didn’t move for a protective order. He 

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didn’t appear in the case. And he didn’t object to the magistrate 

judge’s order denying the protective order. Instead, as in Texas 

Brine, it was a party (the county), not the nonparty (the commissioner), who opposed the discovery in the district court. And the 

commissioner, like the nonparty consulting firm in Texas Brine, finally appeared—for the first time—to appeal the district court’s ruling. That was too late in Texas Brine and it’s too late here. The 

commissioner didn’t participate before the district court, so he 

can’t appeal.

Other courts have reached the same conclusion: a nonparty 

who didn’t participate in the district court may not appeal. See, 

e.g., Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 384 (4th Cir. 

2018) (finding that a nonparty could not appeal where “she did not 

participate in any manner in the post-judgment proceedings at issue in [the] appeal”); La. Off. of Cmty. Servs., 47 F.3d at 1443 (finding that a nonparty could not appeal where “[n]either [the nonparty] nor her attorney pled, intervened or otherwise participated 

in the proceedings below”).

In response, the commissioner advances two arguments,

but both are unpersuasive. First, the commissioner argues that he 

couldn’t participate in the district court because the sober home 

issued a “notice of deposition” to the county but did not “subpoena” him. The commissioner contends, in other words, that he 

couldn’t object (or otherwise participate) below because he was a 

nonparty and wasn’t subpoenaed. The commissioner is wrong. 

One way the commissioner could have participated was by moving 

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for a protective order. The federal rules provide that “[a] party or 

any person from whom discovery is sought may move for a protective order.” Fed. R. Civ. P. 26(c)(1) (emphasis added). The commissioner could’ve moved for a protective order under rule 26 

even though he was a nonparty. 

Or the commissioner could have participated—and objected

to the discovery—by sitting for the deposition and asserting a privilege in response to concrete questions. Once he asserted the privilege and refused to answer, the sober home could have moved for 

an order compelling discovery, and the district court could have 

ordered the commissioner to answer. See generally Fed. R. Civ. P. 

37. Had he been held in contempt for failing to proceed with the 

deposition, the commissioner could’ve then appealed that decision. 

See Drummond Co. v. Terrance P. Collingsworth, Conrad & 

Scherer, LLP, 816 F.3d 1319, 1323 (11th Cir. 2016) (explaining that 

“a litigant seeking to overturn a discovery order” can “refuse to 

comply with the order and contest its validity if subsequently cited 

for contempt for his refusal to obey” (quotation omitted)); see also 

Cobbledick v. United States, 309 U.S. 323, 328 (1940) (explaining 

that once a “witness chooses to disobey [a discovery order] and is 

committed for contempt,” the “witness’ situation becomes so severed from the main proceeding as to permit an appeal”). So the 

commissioner had options. There was no reason that he couldn’t 

have opposed the deposition in the district court.

Second, the commissioner argues that the county asserted 

his immunity on his behalf. But it wasn’t the county’s immunity 

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to assert. See Graham, 473 U.S. at 166–67. And the county’s assertion of the immunity doesn’t equate to the commissioner’s participation in the case. There’s a reason courts require a nonparty’s 

participation in a case before the nonparty can appeal: to ensure 

true adversarial testing. Our case is a prime example of what happens without that testing. Here, the commissioner didn’t appear,

so it’s impossible to know (for example) what his position would 

have been, whether he would have asserted the immunity, 

whether he would have asserted it wholesale or only as to specific 

questions, or what those specific questions would have been. The 

commissioner never got involved in the district court and so we’ll 

stay our hand.

 APPEAL DISMISSED. 

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