United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 2009 Decided April 3, 2009
No. 08-7099
IN RE: DC WATER AND SEWER AUTHORITY,
PETITIONER
On Petition for Permission to Appeal
from the United States District Court
for the District of Columbia
(No. C-01-00561-HK)
Allyson N. Ho argued the cause for the petitioner. Grace E.
Speights and William E. Doyle, Jr., were on brief.
Alexander Hillery, II, argued the cause pro hac vice for the
respondents.
Before: HENDERSON and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
DC Water and Sewer Authority (WASA) filed a petition
pursuant to Federal Rule of Civil Procedure 23(f) for permission
to appeal the district court’s order certifying a class of WASA
employees in an employment discrimination class action.
Because WASA filed the petition more than sixteen months
after the deadline fixed by Federal Rule of Civil Procedure
23(f), we deny the petition as untimely.
2
I.
Charles Taylor filed this action on March 16, 2001, alleging
WASA discriminated against the plaintiff class in hiring and
promotion and seeking a declaration that WASA violated the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., along with
monetary relief. On March 13, 2007, the district court issued an
order pursuant to Rule 23(b)(2) certifying for injunctive and
declaratory relief “the putative class of Black employees at
WASA who sought and were denied positions, career ladder
promotions, or other advancement, or whose advancement was
delayed, or whose compensation was otherwise affected by
WASA’s alleged unlawful discrimination, from October 1996
through December 2000.”1 Taylor v. D.C. Water & Sewer Auth.,
241 F.R.D. 33, 48 (D.D.C. 2007). On March 27, 2007, WASA
moved for reconsideration of the certification order, which
motion the court denied on September 13, 2007.
On April 9, 2008, WASA filed a “Motion to Clarify the
Relevant Class Members for Notice Purposes,” asking that “the
Court grant an order holding that putative class members who
were not employed by DC WASA as of March 16, 2001, the date
on which Plaintiff Charles Taylor filed his original complaint,
lack standing to seek injunctive and declaratory relief and
therefore should be excluded from the Rule 23(b)(2) class.”
Defendant’s Motion to Clarify, Taylor v. D.C. Water & Sewer
Auth., C.A. No. 01-0561 (April 9, 2008). The district court
summarily denied the motion on July 24, 2008.
On August 7, 2008, WASA filed the instant petition for
permission to appeal the certification pursuant to Rule 23(f).
1
Rule 23(b)(2) authorizes class certification where “the party
opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.”
3
II.
Rule 23(f) provides:
Appeals. A court of appeals may permit an appeal
from an order granting or denying class-action
certification under this rule if a petition for permission
to appeal is filed with the circuit clerk within 10 days
after the order is entered. An appeal does not stay
proceedings in the district court unless the district judge
or the court of appeals so orders.
Fed. R. Civ. P. 23(f) (emphasis added). The 10-day deadline to
file a petition for permission to appeal is “strict and mandatory.”
Gutierrez v. Johnson & Johnson, 523 F.3d 187, 192 (3d Cir.
2008); see also Carpenter v. Boeing Co., 456 F.3d 1183, 1190
(10th Cir. 2006) (“timeliness requirement is mandatory”); Coco
v. Inc. Village of Belle Terre, N.Y., 448 F.3d 490, 491-92 (2d Cir.
2006) (per curiam) (requirement is “inflexible”); Gary v.
Sheahan, 188 F.3d 891, 893 (7th Cir. 1999) (10-day limit is
“essential”). Other circuits have drawn a “narrow exception to
the rigid ten-day time limit,” providing that “a timely-filed
motion to reconsider the grant or denial of class certification tolls
the ten-day time limit within which to file a petition for
permission to appeal under Rule 23(f)”—or, more precisely,
“postpones” or “resets” the ten-day period, which “begins anew
when the district court rules on the motion to reconsider,”
Gutierrez, 523 F.3d at 192 & 193 n.4 (citing Carpenter, 456 F.3d
at 1191-92; McNamara v. Felderhof, 410 F.3d 277, 281 (5th Cir.
2005); Shin v. Cobb County Bd. of Educ., 248 F.3d 1061,
1064-65 (11th Cir. 2001) (per curiam); Gary v. Sheahan, 188
F.3d at 892).
In this case, the Rule 23(f) petition was filed on August 7,
2008, almost 17 months after the March 13, 2007 certification
order. Even were we to adopt a rule tolling the time for filing a
Rule 23(f) petition pending disposition of a timely filed motion
4
to reconsider, the deadline would have been extended only to
September 2007 when the district court denied WASA’s
reconsideration motion, almost one year before WASA filed its
petition with this court. By any measure, then, the petition was
far out of time. Notwithstanding the tardiness of its petition,
WASA now argues that the Rule 23(f) filing window reopened
on July 24, 2008 when the district court denied WASA’s belated
motion to clarify the certification order. Thus, WASA asserts,
its August 7, 2008 petition for permission to appeal was timely
because it was filed within ten days of the clarification denial.
WASA’s argument runs counter to the plain language of Rule
23(f).
The July 24, 2008 order denying WASA’s motion to clarify
did not restart the Rule 23(f) clock because it was not “an order
granting or denying class-action certification” as the plain
language of the Rule requires to open the window for an
interlocutory appeal—the only such order the district court
issued is the March 13, 2007 certification order, which survived
the clarification order undisturbed and remains in effect.2 See
Gutierrez, 523 F.3d at 193 (“[T]he ten-day period for filing
either a Rule 23(f) petition or a motion to reconsider runs from
2
Contrary to WASA’s contention, the July 24, 2008 order’s
summary denial of the motion to clarify did not resolve any ambiguity
in the certification order. The text of the order reads in its entirety:
Before the court is Defendant’s Motion to Clarify the
Relevant Class Members for Notice Purposes [#161]. Upon
consideration of the motion, the opposition thereto, and the
record of this case, it is this 24th day of July 2008, hereby
ORDERED that Defendant’s Motion to Clarify the
Relevant Class Members for Notice Purposes [#161] is
DENIED.
Order, Taylor v. D.C. Water & Sewer Auth, C.A. No. 01-0561 (July
24, 2008).
5
the order granting or denying class certification. A later order
that does not change the status quo will not revive the ten-day
time limit.”) (internal citation omitted); Jenkins v. BellSouth
Corp., 491 F.3d 1288, 1291-92 (11th Cir. 2007) (“[W]hat counts
ordinarily is the original order denying or granting class
certification, not a later order that maintains the status quo.”);
Carpenter, 456 F.3d at 1191-92 (“An order that leaves
class-action status unchanged from what was determined by a
prior order is not an order ‘granting or denying class action
certification.’ ”); McNamara, 410 F.3d at 281 (“As the district
court . . . merely reaffirmed its prior ruling, the court’s order was
not ‘an order . . . granting or denying class action certification’
under Rule 23(f).” (second alteration in McNamara)).3 To hold
otherwise would leave Rule 23(f)’s deadline toothless, for any
party could then cause the clock to restart at any time simply by
filing a pleading styled as a “motion to clarify.”4 Cf. Gary v.
Sheahan, 188 F.3d at 893 (“[A] motion to reconsider filed more
than ten days after the order is too late to preserve the possibility
of appeal under Rule 23(f), and we do not think that it matters
what caption the litigant places on the motion to reconsider. This
case demonstrates why that limit is essential. Otherwise, by
styling a motion to reconsider as a motion to decertify the class,
3
WASA’s reliance on the Ninth Circuit’s unpublished opinion in
Bonlender v. Am. Honda Motor Co., 286 Fed. Appx. 414 (9th Cir.
2008), is misplaced. In Bonlender, the court found timely a Rule 23(f)
petition which was filed within ten days after an order clarifying a
class certification order and “resolv[ing] a genuine ambiguity in the
original order.” 286 Fed. Appx. at 414. The district court’s denial of
clarification in this case had no such effect. See supra note 2.
4
Equally unfounded is WASA’s curious assertion that this court
has independent appellate jurisdiction, apart from Rule 23(f), to
determine whether the plaintiff class members have standing so as to
confer jurisdiction on the district court. See Pet’r Br. at 14-17.
6
a litigant could defeat the function of the ten-day line drawn in
Rule 23(f).”).
Courts generally disfavor interlocutory appeals because they
disrupt ongoing trial court proceedings and squander resources.
See In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98,
105 (D.C. Cir. 2002) (“[I]nterlocutory appeals are generally
disfavored as ‘disruptive, timeconsuming, and expensive’ for
both the parties and the courts, and the more so in a complex
class action where the district court may reconsider and modify
the class as the case progresses.” (quoting Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir. 2000)));
Fed. R. Civ. P. 23(f) advisory committee notes (1998
amendments) (“The 10-day period for seeking permission to
appeal is designed to reduce the risk that attempted appeals will
disrupt continuing proceedings.”); Jenkins, 491 F.3d at 1290
(“The Committee Notes . . . explain that the ten-day deadline
provides a single window of opportunity to seek interlocutory
review, and that window closes quickly to promote judicial
economy.”). In its dogged pursuit of an interlocutory
appeal—based on the most tenuous (if not untenable)
grounds—WASA has both disrupted the class action proceeding
in the district court and wasted the resources of the parties and
the court. We find it troubling that WASA and its lawyers would
file—and attempt to justify—such a blatantly untimely petition.
See Fed. R. App. P. 38; SEC v. Loving Spirit Found., Inc., 392
F.3d 486 (D.C. Cir. 2004) (appeal from blatantly untimely
motion so frivolous as to justify sanctions under Fed. R. App. P.
38).
For the foregoing reasons, the petition is denied.
So ordered.