United States: D.C. Circuit Finds That Absent Class Members May Intervene On Appeal To Pursue Rule 23(f) Petition Abandoned By Class Representative

Last Updated: August 22 2017
Article by Gerald L. Maatman Jr. and John S. Marrese

Seyfarth Synopsis: In Harrington v. Sessions, No. 15-8009, No. 16-5285 & No. 16-5286 (D.C. Cir. July 21, 2017), the U.S. Court of Appeals for the D.C. Circuit found that absent class members may intervene in an appellate court proceeding to pursue a Rule 23(f) petition abandoned by a settling class representative, even if the intervention motion is filed after the dismissal of the settling representative's claims. The D.C. Circuit's ruling illustrates that even the denial of class certification and final settlement of a class representative's claims may not put an end to class action litigation.

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In Harrington v. Sessions, No. 15-8009, No. 16-5285 & No. 16-5286, 2017 U.S. App. LEXIS 13111 (D.C. Cir. July 21, 2017), the D.C. Circuit addressed whether it had jurisdiction to rule upon absent class members' motion to intervene in an appellate court proceeding to pursue a Rule 23(f) petition abandoned by a settling named plaintiff-appellant. The absent class members filed their motion to intervene after the settling plaintiff-appellant had already filed a stipulated dismissal of his settled claims.

The D.C. Circuit found that it indeed had jurisdiction to entertain the absent class members' motion to intervene in the Rule 23(f) petition. It explained that the elimination of an Article III case or controversy does not preclude a district court or appellate court from entertaining a subsequent motion to intervene for purposes of filing an appeal, as long as the intervenor has a sufficient Article III stake in the appeal. The D.C. Circuit further opined that absent class members may have a sufficient stake to appeal the denial of class certification even if the named plaintiff does not appeal. As such, the D.C. Circuit found that it had jurisdiction under Rule 23(f) to hear the absent class members' motion to intervene for purposes of appealing the denial of class certification.

On the merits, the D.C. Circuit found that the absent class members satisfied the prerequisites for intervention as a matter of right and, thus, it addressed their Rule 23(f) petition. However, the D.C. Circuit declined to review the denial of class certification under Rule 23(f) as the absent class members presented no special circumstances justifying such review.

Case Background

In 2008, U.S. Marshal David Grogan filed a putative class action in the U.S. District Court for the District of Columbia against the U.S. Marshals Service (the "Marshals") alleging racial discrimination under Title VII of the Civil Rights Act of 1964. 2017 U.S. App. LEXIS 13111, at *2-3 (D.C. Cir. July 21, 2017). The complaint sought both injunctive and monetary relief, but alleged that "injunctive and declaratory relief [we]re the predominant forms of relief sought." Id. at *3.

By 2013, after pleading and motion practice, the named plaintiff Herman Brewer ("Plaintiff") was the sole plaintiff representing the putative class. Id. at *4. Plaintiff retired from the Marshals a few months before discovery closed. Id. After discovery closed, Plaintiff filed: (i) a motion to amend the complaint to substitute four additional plaintiffs as class representatives; and (ii) a Rule 23 motion for class certification. Id. at *5.

The district court denied Plaintiff's motion to substitute new plaintiffs, finding that Plaintiff had not diligently pursued such substitution. Id.

The district court also denied Plaintiff's motion for class certification. Id. at *5-6. The district court found that, because Plaintiff had retired and was no longer an employee of the Marshals, Plaintiff could not adequately represent a class predominantly seeking injunctive relief. Id. at *6. The district court also found that Plaintiff's individual claims for monetary relief were not typical of the class-wide claims for injunctive relief and, as such, did not provide a basis to certify a class either. Id. Finally, the district court refused to certify a narrower class, seeking damages only, because doing so constituted "claim splitting" and jeopardized class members' ability to subsequently pursue other claims in the face of potential res judicata arguments. Id.

Plaintiff timely petitioned the D.C. Circuit under Rule 23(f) for interlocutory review of the denial of class certification. Id. However, during the pendency of the petition, Plaintiff settled his individual claims and filed a stipulation of dismissal under Rule 41(a)(1)(A)(ii). Id. at *7.

On the same day Plaintiff filed the stipulated dismissal, three current and one former African-American employee of the Marshals (the "Intervenors") moved to intervene in the district court to appeal the district court's denial of class certification and moved to intervene in the appellate court to pursue the Rule 23(f) petition filed by Plaintiff. Id.

While their motion to intervene in the district court was still pending, the Intervenors filed a notice of appeal from: (i) Plaintiff's stipulated dismissal; (ii) the order denying class certification; and (iii) the "effective" denial of their motion to intervene insofar as the district court had not decided their motion to intervene within the time Intervenors believed they had to file a notice of appeal (i.e., within 60 days of Plaintiff's stipulated dismissal). Id. at *7-8. Thereafter, the district court dismissed the Intervenors' motion to intervene based on the rationale that the Intervenors' notice of appeal stripped the district court of jurisdiction to rule on the motion. Id. at *8.

On the Intervenors' motion, Plaintiff's Rule 23(f) petition and the Intervenors' appeal were consolidated before the D.C. Circuit. Id.

The Decision

The D.C. Circuit first addressed whether it had jurisdiction. Id. at *9. The stipulated dismissal of Plaintiff's claims, which removed any live Article III case or controversy from the district court and appellate court, presented a quandary. Although intervention could cure that quandary by substituting Intervenors for Plaintiff, the D.C. Circuit had to have jurisdiction in the first place to rule on the intervention motion. See id. ("Thus, the situation may appear to present a Catch-22: Intervention can overcome the apparent jurisdictional problem created by the stipulated dismissal, but a court may grant intervention only if it has jurisdiction to do so."). The D.C. Circuit resolved the quandary by finding that it had jurisdiction over the Intervenors' motion to intervene in the Rule 23(f) petition. Id.

In so finding, the D.C. Circuit rejected the decisions of other courts that have held that a stipulated dismissal precludes a court from taking further action on motions filed after, or even before, such a dismissal. Id. at *11-12. The D.C. Circuit explained that a stipulated dismissal and a court-ordered dismissal are no different in their jurisdictional effect – both eliminate a live case or controversy. Id. at *12-14. As such, the D.C. Circuit found that it had jurisdiction to entertain any motion after a stipulated dismissal that it could entertain after a court-ordered dismissal.

In that regard, the D.C. Circuit explained that it is well-established that, even in the absence of a live controversy, courts retain jurisdiction to hear motions to intervene for purposes of appealing dismissed claims, as long as the intervenor has an Article III interest sufficient to pursue the appeal. Id. at *14 (citations omitted). Moreover, the D.C. Circuit asserted that it is similarly well-established that absent class members may have a sufficient Article III interest to appeal the denial of class certification even if the named plaintiff does not appeal. Id. at *14-15 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)). Indeed, "[w]hen an absent plaintiff intervenes to appeal a denial of class certification, he has the same Article III stake on appeal as he would have had in the action had the class been certified." Id. at *15 (citing Twelve John Does, 117 F.3d 571, 575). The D.C. Circuit reasoned that, because the absence of an Article III controversy does not preclude a court from hearing a motion to intervene for purposes of appealing and because an appellate court has jurisdiction to hear an absent plaintiff's appeal from the denial of class certification, it had jurisdiction under Rule 23(f) to hear the Intervenors' motion to intervene. Id. at *15-16.

In finding such jurisdiction, the D.C. Circuit distinguished the recent U.S. Supreme Court decision of Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712-1713 (2017), wherein the Supreme Court held that a plaintiff's voluntary dismissal of his claims, subsequent to an appellate court's denial of his Rule 23(f) petition, did not create a final, appealable order. Harrington, 2017 U.S. App. LEXIS 13111, *16. The D.C. Circuit explained that, unlike Baker, the issue here involved only a petition for review under Rule 23(f), not an appeal from a final order. Id. at *17. Furthermore, equitable considerations present in Baker, where the plaintiff had orchestrated guaranteed appellate review of his Rule 23 claims through voluntary dismissal, were not present here. Id. (For further discussion of Microsoft Corp. v. Baker, see here).

Next, the D.C. Circuit turned to the motion to intervene. It stated that it could address the motion to intervene in the first instance on appeal primarily for purposes of judicial economy. Harrington, 2017 U.S. App. LEXIS 13111, *18-19 . The D.C. Circuit then found that the Intervenors easily met the criteria for intervention as a matter of right under Rule 24(a)(2). Id. at *19-23.

Nonetheless, the D.C. Circuit rejected the Intervenors' Rule 23(f) request and declined to review the district court's denial of class certification. Id. at *24-31. It found that the Intervenors failed to show that any special circumstances warranted such review. Id.

Finally, the D.C. Circuit dismissed the Intervenors' appeal from final judgment in the case below, restoring the district court's jurisdiction over the case. Id. at *31. It ordered that, on remand, the district court should allow reasonable time for the Intervenors to file both a motion to substitute a new class representative and a renewed motion for class certification. Id.

Implication for Employers

Defeating the class representative does not necessarily end class litigation. Absent class members may be able to pursue such litigation after the class representative exits. Accordingly, employers should litigate with an eye toward defeating the class even where they anticipate that a named representative is inadequate or that the claims of a named representative may be defeated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Gerald L. Maatman Jr.
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