On July 25, 2014, a three-judge panel of the Fourth Circuit refused to accept a Rule 23(f) interlocutory appeal in a case where an employer had asked the district court to decertify a hostile work environment class in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In Nucor v. Brown, No. 14-154, 2014 U.S. App. LEXIS 14182 (4th Cir. 2014), the panel decided the request was untimely because the order it sought to overturn was issued in 2011. You can read the decision here.
The outcome says more about class action law and its current evolutions perhaps, than about the rules regarding timing of class action appeals. This case has been before the Court of Appeals before (in 2009 and now), after the district court denied class certification in a case where African-American employees lodged “substantive allegations of racial discrimination.” Id., slip op. at 2. The first time, the Fourth Circuit vacated and remanded for the district court to grant class certification. In early 2011, the district court certified two classes, one involving disparate treatment and disparate impact discrimination in promotions, and the second involving a hostile work environment. But after the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2001), in June 2011, the parties in this case continued to litigate the propriety of class certification in the district court, as motions for reconsideration and decertification were briefed and argued. Id. at 3. In 2012, the district court decertified the promotions class in light of Wal-Mart, but left intact the hostile work environment class. Both sides asked the Fourth Circuit to review that decision under Rule 23(f) in a timely manner — e.g., within the 14-day time period allowed for class certification interlocutory appeals under Rule 23(f). That time, the Fourth Circuit denied Nucor’s petition for interlocutory review, but granted the plaintiffs’ petition. While that appeal was pending, the Supreme Court decided Comcast. Nucor moved for decertification of the hostile work environment class again under the reasoning of that case (arguing that individual damages calculations preclude a finding of predominance of common issues under Rule 23(b)(3)). The district court declined to decertify the hostile work environment class, Nucor timely sought reconsideration (which was denied), and 14 days later per Rule 23(f), Nucor asked the Fourth Circuit to review the denial of decertification under Comcast.
The Fourth Circuit explained that it would not take up Nucor’s interlocutory appeal of the Comcast issue because “the time for appeal will not be reset when a court rules on certification motions filed subsequent to the original ruling so long as the later rulings do not alter the original ruling.” Id. at 4. Under this decision, subsequent motions aimed at trying to “amend the original certification order” are considered untimely when filed after the 14-day deadline in Rule 23(f). What about Nucor’s point that the Supreme Court’s decision in Comcast changed the law in a way that should require appellate review? The Fourth Circuit explained “We are not persuaded that Comcast rises to this level of demanding exceptional treatment in this case.” Id. at 5, n.2.
Implications For Employers
The meandering way in which this decision came about is perhaps important to its outcome, though apparently not as important as the Fourth Circuit panel’s opinion about the significance — or lack thereof — of Comcast. As our blog postings have explained before, for example, in discussing recent case law out of the Seventh Circuit, the application of Comcast to class certification in a variety of contexts is still developing in the law. As a result, we will continue to bring our readers important new decisions in this area as they are decided.