Appealing Florida’s Litigation Privileges
In Grippa v. Rubin, the Eleventh Circuit addressed the immediate appealability of Florida’s absolute and qualified litigation privileges. The court determined that the absolute privilege was immediately appealable via the collateral-order doctrine. But the qualified litigation privilege was not.
The case involved claims for defamation under Florida law. Some of the allegedly defamatory statements were made in connection with a lawsuit that the defendant had filed against various Florida government officials. In that lawsuit, as well as in letters the defendant’s lawyer had sent to some state officials, the defendant contended that the plaintiff was part of a criminal “enterprise.” The plaintiff sued the defendant for defamation. The defendant then invoked Florida’s absolute and qualified litigation privileges, arguing that any defamatory statements were made in connection with litigation. The district court rejected those defenses, and the defendant appealed.
The Absolute Privilege
The Eleventh Circuit first held that denial of the absolute litigation privilege was immediately appealable via the collateral-order doctrine. That doctrine deems an order final and appealable if (1) it conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. The denial of the absolute privilege was conclusive, as the district court had definitively resolved whether the defendant needed to face trial. The denial was also important—litigation privileges are necessary for the full airing and resolution of grievances—and separate from the merits—the defense does not engage with the action’s merits. Finally, because the absolute privilege is an immunity from suit, it must be vindicated before the case proceeds to a final judgment.
The Qualified Privilege
The qualified privilege was different. For one thing, the district court had rejected the defense due to genuine issues of fact, namely whether the defendant had acted with malice. So the rejection wasn’t conclusive. For the same reason, the issue was not separate from the merits—applying the defense required a finding as to the defendant’s mens rea. And the qualified privilege provides a defense to liability, not an immunity from suit. So it could be effectively reviewed after a final judgment.
No Pendant Appellate Jurisdiction
The Eleventh Circuit also declined to extend pendent appellate jurisdiction to the qualified-privilege denial. Without deciding whether the exercise of pendent appellate jurisdiction was permissible, the court exercised its discretion to decline extending pendent appellate jurisdiction over the issue.
Grippa v. Rubin, 2025 WL 997347 (11th Cir. Apr. 3, 2025), available at the Eleventh Circuit and Westlaw
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