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Intervenors can renew quest for race bias class action, but not on interlocutory review

By Lisa Milam-Perez, J.D.

Four would-be named plaintiffs were allowed to intervene to pursue the interlocutory appeal of a district court order denying class certification in a race discrimination suit brought by African-American marshals employed by the U.S. Marshal Service, the D.C. Circuit ruled, tackling thorny procedural matters. The intervenors sought to step in after the lone named plaintiff settled his claims with the agency and entered a stipulated dismissal. However, the plaintiffs couldn’t clear the second procedural hurdle, as the D.C. Circuit found interlocutory review was not warranted. The intervenors did not present a question that fell within the court’s discretion to hear an interlocutory appeal under the D.C. Circuit’s Lorazepam & Clorazepate Antitrust Litigation framework (In Re Herman Brewer, July 21, 2017, Ginsburg, D.).

The underlying Title VII case was brought on behalf of a class of African-American U.S. marshals who alleged race-based discrimination on the part of the U.S. Marshal Service (USMS). Specifically, they contended that the agency’s merit promotion plan impeded the promotion of African-American marshals; its practice of noncompetitive selection for lateral assignments diminished their opportunities for advancement; and the agency’s procedures for placing marshals in “career-enhancing” headquarter duty assignments disproportionately excluded African-American marshals.

Procedural background. The procedural history was complex enough to warrant several color diagrams illustrating the proceedings below in the D.C. Circuit’s written opinion. In a nutshell: the original named plaintiff was granted permission to add two additional class representatives. A few years later, he dismissed his individual claims against the USMS and dropped out of the litigation. Subsequently, the district court granted summary judgment on several other class claims, thereby eliminating the claims of one of the two remaining class representatives. That left, once again, a sole named plaintiff to pursue the remaining claims of discriminatory assignments and promotions on behalf of the class. However, that named plaintiff reached mandatory retirement age before he moved to substitute four additional plaintiffs to represent the class. Consequently, the district court rejected his motion (as having not been diligently pursued).

The district court also refused to certify the class. The claim called predominantly for equitable relief and, now that he was no longer an employee, the lone plaintiff lacked standing to pursue classwide injunctive relief, making him an unsuitable class representative. (The court also declined to certify a smaller damages class, concluding that doing so would amount to improper claim-splitting.) The named plaintiff then filed a petition for interlocutory review of the denial of class certification. However, while that petition was pending, he settled his individual claims with the USMS and filed a stipulation of dismissal.

Four marshals filed a motion to intervene in district court hoping to pursue the interlocutory appeal for the class. While that motion remained pending, the intervenors filed in a notice of appeal in circuit court from the stipulated dismissal of the named plaintiff’s individual claims; an appeal from the district court order denying class certification; and an appeal from the effective denial of their motion to intervene within the time to appeal. The district court dismissed the motion to intervene, finding that the notice of appeal had stripped the district court of jurisdiction to rule on intervention. That brings us here: The D.C. Circuit was tasked with resolving the petition for permission for interlocutory appeal of the denial of class certification and the motion for intervention.

Threshold jurisdictional question. There were two jurisdictional wrinkles, and no circuit court had yet confronted the interaction of the two: What was the effect of the stipulated dismissal upon the motion to intervene, for purposes of appeal? And how does the stipulated dismissal of the named plaintiff’s individual claims affect the right of absent members of a putative class to appeal the denial of class certification? The D.C. Circuit first concluded that, at bottom, a stipulated dismissal “is no different in jurisdictional effect from a dismissal by court order.” Second, it held: “Because mootness does not preclude intervention for the purpose of taking an appeal and because an appellate court has jurisdiction to hear a would-be plaintiff’s appeal from the denial of class certification, we also have jurisdiction under Rule 23(f) to hear the motion to intervene in the interlocutory petition for review of the denial of class certification, notwithstanding the stipulated dismissal of the named plaintiff’s claims.”

The U.S. Supreme Court’s June decision in Microsoft Corp. v. Baker did not alter this result, the appeals court added. In that commercial class action, a unanimous Supreme Court ruled that appellate courts lack jurisdiction under 28 U.S.C. §1291 to review an order denying class certification (or an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice. But the procedural posture was far different here. There was no statutory issue involved—solely Rule 23(f), in this case—and the “equitable and policy considerations” at stake there were not present. The named plaintiffs in Microsoft were resorting to “opportunistic” dismissal tactics. Such was not the case here; the four marshals moved immediately to intervene upon receiving notice of the stipulated dismissal. Moreover, the named plaintiff had showed genuine regret that he couldn’t go to bat for the class.

Motion granted, but interlocutory review denied. Concluding that the intervenors satisfied the requirements of Rule 24(a)(2), the appeals court granted the motion for intervention to pursue the petition for interlocutory review of the district court’s decision denying class certification. However, it refused to grant their petition for interlocutory review under Rule 23(f).

Interlocutory review is generally disfavored, the D.C. Circuit noted, and is available in only limited circumstances as set forth in its 2002 decision in In re Lorazepam & Clorazepate Antitrust Litig. None of those circumstances were present here. This was no “death knell” situation—the plaintiffs acknowledged they would continue to pursue their claims whether the appeals court granted their Rule 23(f) petition or not. Also, the issues in the case were “neither novel nor particularly important.” The marshals argued that the district court had announced a “novel rule” that plaintiffs in a Rule 23(b)(3) class action “must be eligible to obtain certification of a (b)(2) injunctive class.” If so, that might indeed have been worth considering on interlocutory appeal, but that’s not quite what happened, the appeals court said. At any rate, it suspected it would be facing these arguments again at the end of the district court case, and could resolve them at that time. Nor was there manifest error on the district court’s part, or special circumstances commanding the appellate court’s immediate attention.

Back to the lower court. The appeals court did grant the motion to consolidate the petition and the appeal and dismiss the appeal from final judgment, restoring the district court’s jurisdiction over the case. The appeals court directed the court below to grant the intervenors reasonable time to file a motion to substitute a new class representative as well as a renewed motion for class certification.