Labor & Employment Law Daily Wrap Up, PROCEDURE—11th Cir.: Professor, disciplined for allegedly unprofessional email, missed ‘idiosyncratic’ deadline to appeal case, (Aug 21, 2025)

By Jason Albright, J.D.

“Our rule is maybe even in tension with a Supreme Court case that preceded it—plus the now-revised Federal Rules of Civil Procedure,” said the Eleventh Circuit panel.

The Eleventh Circuit lacks jurisdiction to consider the appeal of a University of Florida professor from dismissal of his claims alleging that the university violated his free speech and due process rights when it suspended him for five days without pay after he emailed his students to say the university was forcing him to return to the classroom during the COVID-19 pandemic against his will. The deadline to appeal under Federal Rule of Appellate Procedure 4(a)(1)(A) is 30 days after a final judgment. Under the appeals court’s precedent in Schuurman v. Motor Vessel Betty K V, 798 F.2d 442, 445 (11th Cir. 1986) the judgment was considered final on the last day the court set for the professor to amend his complaint, that was true even though he did not amend and even though the court did not issue a final order on that date, and the professor did not file his appeal until 38 days later (Burt v. President of University of Florida, No. 23-12616 (11th Cir. Aug. 20, 2025, vacated Oct. 8, 2025, rehearing en banc granted)).

English professor. The plaintiff has been an English professor at the University of Florida since 2003. In August 2021, “even more than a year into the COVID-19 pandemic,” he remained worried about teaching in the classroom. He was 67 years old, suffered from several health challenges, and had received “only two of the three vaccinations.”

Outraged. When the university announced to the faculty that remote classes would not be allowed starting that fall, he was outraged, and after skipping an English Department meeting to discuss the transition back to in-person classes, plus some back and forth with the department chair, he 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.”

Student complaint and exchanges with department chair. When one student complained and dropped the class, the department chair again approached him on the issue, and he again volleyed back emails with various questions and challenges.

Email at issue. 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 he signed off with “a nonsensical series of words,” according to the appeals court: “Herr Doktor Rev. Professor Blind Burt Ph.4KUltaHD, Department of loser Studies, Pharmakonology, and Cosmic Criticism.”

University’s response. The university acted swiftly, reassigning his courses to another professor and placing him on paid administrative leave pending an investigation. Administrators ultimately determined that he had violated two school regulations relating to disruptive behavior and faculty misconduct, as well as the faculty’s labor contract with the university.

Based on these conclusions, the university proposed suspending him for five days without pay. The Dean of the College of Liberal Arts and Sciences and the English Department chair also signed an official letter to him, calling his behavior “improper and unprofessional.” The letter instructed him 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. The letter noted that he 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.

First Amendment lawsuit. He 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 and left open the possibility that “this might be a different case” if he 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. Because this dispute instead involved “gratuitous information in a logistical e-mail [[the professor]] sent in his capacity as a professor,” the First Amendment provided no refuge, according to the district court, which also rejected his procedural due process claim for failure to pursue state-law remedies before suing in federal court.

Deadline to amend. Though the district court dismissed the professor’s original complaint in a June 21 order, the court gave him until July 3 to file an amendment. The order also instructed the clerk to enter judgment if he did not amend by that date, “immediately triggering [his] right to appeal.”

Though the professor did not amend by that date, the clerk did not enter judgment either.

July 14 sua sponte order. Then, on July 14—eleven days after the deadline to amend—the district court sua sponte issued another order. Because the time for the professor 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.

Notice of appeal. The professor filed his notice of appeal 27 days later, on August 10. The university moved to dismiss, arguing that the appeal was untimely, and the Eleventh Circuit carried the motion to dismiss with the case.

Deadline to appeal. For a notice of appeal to be timely, the Eleventh Circuit initially observed, 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. § 2107(a).

Eleventh Circuit precedent. “Concerned about the gamesmanship invited by the lack of a final judgment when district courts allow leave to amend in a dismissal order,” the Eleventh Circuit continued, “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.”

Our “idiosyncratic” rule. The appeals court did acknowledge that its Schurman 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.” In any event, said the Eleventh Circuit, “none of that makes it any less our rule.”

Too late. And Schurman’s holding “turns out to matter a lot here,” said the appeals court. The district court’s initial dismissal order mandated amendment by July 3, but no order was entered dismissing the complaint until July 14. As the university argued, under Schuurman, the district court’s order dismissing the professor’s complaint became a final judgment on July 3—the deadline the court set to file an amended complaint. He had 30 days after that to appeal, and time ran out on August 2, making his August 10 notice of appeal eight days too late.

Schuurman, the Eleventh Circuit noted, offers no exceptions to its deadline-for-amendment rule. Because the professor appealed more than 30 days after the deadline the district court set to amend, his appeal was untimely.

The case is No. 23-12616.

Judge: Grant, B.

Attorneys: Richard Errol Johnson (Law Offices of Richard E. Johnson) for Richard Burt. Michelle Bedoya Barnett (Alexander Degance Barnett) for President of University of Florida.

Companies: President of University of Florida

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