United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 9, 2006 Decided April 7, 2006
No. 05-5132
IN RE: SANDRA L. JAMES ET AL.,
PETITIONERS
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01835)
Joseph D. Gebhardt argued the cause for petitioners. With
him on the briefs was Charles Williamson Day, Jr.
Peter D. Blumberg, Assistant U.S. Attorney, argued the
cause for respondent. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: HENDERSON and TATEL, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this employment discrimination
case against a federal agency, the district court denied class
certification because, in its view, the employee plaintiffs failed
to file their lawsuit within the time required by Title VII of the
Civil Rights Act of 1964. Plaintiffs, petitioners herein, now
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seek to challenge the denial of class certification, invoking Rule
23(f) of the Federal Rules of Civil Procedure, which gives courts
of appeals discretion to entertain an interlocutory appeal “from
an order of a district court granting or denying class action
certification.” Fed. R. Civ. P. 23(f). In In re Lorazepam &
Clorazepate Antitrust Litigation, 289 F.3d 98 (D.C. Cir. 2002),
this court limited Rule 23(f) interlocutory appeals to petitions
that present issues relating to Rule 23’s certification
requirements. Given that the district court in this case denied
class certification because it believed petitioners failed to
comply with requirements imposed by Title VII, not Rule 23,
we decline to hear this appeal.
I.
Title VII of the Civil Rights Act of 1964, as amended,
prohibits “discrimination based on race, color, religion, sex, or
national origin” in federal employment. 42 U.S.C. § 2000e-
16(a). Under Title VII, employees who believe they have been
discriminated against must first consult an Equal Employment
Opportunity (EEO) Counselor within 45 days of the alleged
discriminatory acts. 29 C.F.R. § 1614.105(a)(1). Should the
employee and the Counselor fail to resolve the discrimination
claim within 30 days, the Counselor sends the employee a notice
explaining the administrative complaint procedure. Id.
§ 1614.105(d). The employee then has 15 days to file an
individual and/or class complaint with the employing agency.
Id. § 1614.106 (regulations governing individual complaints); id.
§ 1614.204 (regulations governing class complaints); see also id.
§ 1614.103 (noting types of complaints governed by agency
processing procedures outlined in regulations). Upon receipt of
a final agency decision—known as a “FAD”—disposing of the
administrative complaints, the employee has either 30 days to
appeal to the Equal Employment Opportunity Commission
(EEOC), id. §§ 1614.401(a), 1614.402(a), or 90 days to file suit
in federal court, 42 U.S.C. § 2000e-16(c).
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Unable to resolve their claims with agency EEO
Counselors, petitioners filed individual administrative
complaints alleging that their employer, the Naval Sea Systems
Command (“NAVSEA”), discriminated against them on the
basis of, among other things, sex and/or race. Later, they filed
a class complaint together with a motion to certify the matter as
a class action. As required by applicable regulations, NAVSEA
forwarded the class complaint to the EEOC. See 29 C.F.R. §
1614.204(d). Nearly two years later, an EEOC Administrative
Law Judge dismissed the class complaint for lack of jurisdiction.
On March 21, 2003, NAVSEA sent the class agents (i.e., class
members acting on behalf of the class, see 29 C.F.R. §
1614.204(a)(3)), including several petitioners, a letter notifying
them that it had adopted the ALJ’s decision to dismiss the class
complaint but that it would process the claims as individual
complaints. Styled a “Final Order,” the March 21 letter also
notified the class agents of their right either to appeal to the
EEOC or to file suit in federal district court. None of the class
agents pursued either course of action. On May 29, two months
after class agent petitioners received the March 21 letter, each
petitioner received a letter dismissing their individual
complaints.
Although petitioners failed to sue within 90 days of the
March 21 letter dismissing their class complaint, they did file
suit within 90 days of the May 29 FADs dismissing their
individual complaints. Shortly thereafter, they filed a motion
under Rule 23 of the Federal Rules of Civil Procedure to certify
the case as a class action. In response, NAVSEA filed a Rule
12(b)(6) motion to dismiss, arguing that petitioners’ claims were
untimely—the individual claims because petitioners had failed
to contact a Counselor within 45 days of the alleged
discriminatory acts, and the class claims because petitioners had
failed to file suit within 90 days of the March 21 dismissal of the
class complaint. The district court, finding that petitioners had
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in fact contacted an EEO Counselor within 45 days, denied
NAVSEA’s motion to dismiss the individual claims. James v.
England, 332 F. Supp. 2d 239, 246 (D.D.C. 2004). Agreeing
with the agency’s second point, however, the district court
granted the motion to dismiss the class claims because
petitioners had failed to file suit within 90 days of receiving the
March 21 letter dismissing the class complaint. Id. at 250.
Then, explaining that it had no “jurisdiction to entertain the class
complaint,” the district court found itself “compelled to deny the
plaintiffs’ [Rule 23] motion for class certification.” Id. at 250
n.5.
Petitioners moved for reconsideration, arguing first that the
district court “erred in treating the plaintiffs’ motion for class
certification as a challenge” to the EEOC’s March 21 letter
dismissing their class complaint, “rather than as a request to
certify the plaintiffs as a class pursuant to [Rule 23],” and
“[s]econd, that they should be excused for any untimely filings
. . . on equitable tolling grounds.” James v. England,
226 F.R.D. 2, 3 (D.D.C. 2004). The district court denied the
motion, finding that petitioners failed to meet the “prerequisites
to a federal action” when they neglected to “act[] upon the
EEOC’s statutory notice of the right to sue” on their class
complaint. Id. at 5 (emphasis, internal quotation marks, and
citation omitted). Allowing petitioners to proceed “as a class
based upon their individual claims would,” the district court
explained, “permit them to circumvent the clear legal structure
for pursuing class claims under Title VII.” Id. at 6. Because
none of the plaintiffs had timely filed a properly exhausted
administrative class claim, the district court found itself without
“any administratively exhausted class claims, which . . . would
permit it to entertain a motion for class certification.” Id. The
district court also denied petitioners’ request for equitable
tolling. According to the district court, petitioners waived their
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“[a]dmittedly . . . compelling” equitable tolling argument by
failing to raise it in their pleadings. Id. at 6-7.
Pursuant to Rule 23(f), plaintiffs filed a timely petition for
interlocutory appeal of the district court’s order denying class
certification. Rule 23(f) gives federal courts of appeals
“discretion [to] permit an appeal from an order of a district court
granting or denying class action certification.” Fed. R. Civ. P.
23(f).
II.
In re Lorazepam & Clorazepate Antitrust Litigation
(“Lorazepam”) articulates the circumstances under which this
circuit will exercise its discretion to entertain Rule 23(f)
interlocutory appeals. Sharing the advisory committee’s
“reluctance to depart from the traditional procedure in which
claimed errors by the district court are reviewed on appeal only
upon the conclusion of the proceedings in the district court,”
Lorazepam, 289 F.3d at 104-05, Lorazepam makes clear that
this court will exercise its discretion to hear Rule 23(f)
interlocutory appeals only where the petition presents issues
arising under Rule 23, e.g., numerosity, commonality, typicality,
and adequacy of representation, id. at 106; see also Fed. R. Civ.
P. 23(f) advisory committee’s note (1998) (recognizing appellate
court’s broad discretion, but noting that “many suits with class-
action allegations present familiar and almost routine issues that
are no more worthy of immediate appeal than many other
interlocutory rulings” and advising “courts of appeals [to]
develop standards for granting review”). Even if the issues
raised relate to class certification, Lorazepam also requires that
they fit into one of three categories considered “typically”
appropriate for “interlocutory appeal pursuant to Rule 23(f)”:
(1) when there is a death-knell situation for either the
plaintiff or defendant that is independent of the merits
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of the underlying claims, coupled with a class
certification decision by the district court that is
questionable, taking into account the district court’s
discretion over class certification; (2) when the
certification decision presents an unsettled and
fundamental issue of law relating to class actions,
important both to the specific litigation and generally,
that is likely to evade end-of-the-case review; and (3)
when the district court’s class certification decision is
manifestly erroneous.
289 F.3d at 99-100. Although noting that these categories are
not “rigid,” Lorazepam nonetheless concludes that, “absent
special circumstances, this court’s consideration of petitions for
interlocutory review under Rule 23(f) should ordinarily fall
within the[se] three circumstances.” Id. at 105-06.
Invoking Lorazepam’s third category, petitioners argue that
the district court’s denial of class certification was “manifestly
erroneous” in two respects. First, they insist that because they
administratively exhausted their class claims, and because they
timely filed their administrative individual claims, the district
court should have certified a Rule 23 class action regardless of
their failure to meet Title VII’s deadline for filing their
administrative class claims in federal court. Second, they argue
that the district court should have certified a Rule 23 class action
based on the administratively exhausted and timely filed claims
of those employees who, though named in the administrative
class complaint, were not class agents. According to petitioners,
these claims are unaffected by the class agents’ failure to file a
civil action within 90 days of the March 21 letter.
Whatever their merits under Title VII, these arguments
suffer from a fatal flaw with respect to Rule 23(f): the arguments
relate to the requirements of Title VII, not Rule 23, and
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Lorazepam makes clear that its three secondary categories,
including whether the district court’s decision might be
“manifestly erroneous,” come into play only if the issues raised
in the Rule 23(f) petition relate to Rule 23’s certification
requirements.
Indeed, this case is indistinguishable from Lorazepam.
There, several drug companies challenged the certification of a
class of direct purchasers, arguing that the district court erred
when it failed to determine whether the class and its
representatives had standing under the relevant antitrust law to
sue for damages. Id. at 101-02. Although the drug companies
correctly pointed out that “whether a class of direct purchasers
has antitrust standing under the particular circumstances at issue
is a novel question of law” that “may dispose of the class as a
whole and thereby preclude a lawsuit by direct purchasers,” we
found the question “unrelated to the Rule 23 requirements” and
thus “well beyond the purpose of Rule 23(f) review.” Id. at 107.
“What matters for purposes of Rule 23(f),” we explained, “is
whether the issue is related to class certification itself, and
[petitioner] makes no showing that its antitrust standing claim
is so related.” Id. Without reaching the secondary inquiry—the
same inquiry on which petitioners in this case rely—we declined
to exercise our Rule 23(f) discretion to consider the antitrust
standing question even though the issue was novel, dispositive,
and necessarily prerequisite to a Rule 23 analysis. The same is
true here. Although the Title VII questions petitioners present
are novel, dispositive, and necessarily prerequisite to a Rule 23
analysis, they have nothing at all to do with Rule 23. They are
thus “well beyond the purpose of Rule 23(f) review.”
Attempting to convert their Title VII arguments into Rule
23 issues, petitioners contend that the district court violated the
Federal Rules Enabling Act. See 28 U.S.C. § 2072(b). Under
that Act, federal rules prevail over conflicting statutes unless
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supersession would “abridge, enlarge, or modify any substantive
right.” Id.; see also id. (“All laws in conflict with [the federal
rules of procedure] shall be of no further force or effect after
such rules have taken effect.”). According to petitioners, Title
VII regulations governing class complaints impose procedural
obligations and therefore cannot best Rule 23. Thus, they say,
the issue presented is whether the district court allowed EEOC
procedural regulations to trump Rule 23, a question appropriate
for Rule 23(f) interlocutory appeal.
Again, petitioners’ argument suffers from a fatal defect.
Before the district court can determine whether petitioners’
complaint qualifies for class status under Rule 23, it must decide
whether they may bring their complaint in the first place—a
threshold Title VII question entirely unrelated to Rule 23. Thus,
rather than framing a Rule 23 question, petitioners’ Rules
Enabling Act argument raises exactly the same issue presented
by their merits arguments, namely, whether Title VII requires
petitioners to have filed exhausted and timely administrative
class claims in order to pursue a class action in federal court.
Because this question arises under Title VII, not Rule 23,
Lorazepam bars us from hearing it now.
Finally, petitioners argue that their claims qualify for Rule
23(f) review under the following language from Lorazepam:
“there may be occasions when threshold issues (e.g., statute of
limitations), jurisdictional issues (e.g., Article III constitutional
standing), or issues on the merits (e.g., affirmative defenses or
the elements of a cause of action), would be appropriate for
interlocutory review pursuant to Rule 23(f)” when “those issues
. . . relate in some manner to the certification of the class or the
court’s jurisdiction.” 289 F.3d at 108 (internal citations
omitted). Neither of petitioners’ arguments, however, relates to
“certification of the class or the court’s jurisdiction.” As noted
above, the Title VII questions petitioners present implicate none
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of Rule 23’s certification requirements. Nor is either timeliness
or administrative exhaustion jurisdictional, see Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89 (1990) (finding that Title VII’s
timeliness requirement is not a jurisdictional requirement but
rather is similar to a statute of limitations); De Medina v.
Reinhardt, 686 F.2d 997, 1012 (D.C. Cir. 1982) (noting that
failure to file a claim, like the timeliness requirement, is not a
jurisdictional prerequisite to suit); see also Arbaugh v. Y & H
Corp., No. 04-944, slip op. at 14 (U.S. Feb. 22, 2006) (ruling
that “a threshold limitation on a statute’s scope shall count as
jurisdictional” only “[i]f the Legislature clearly states” it is so;
otherwise “courts should treat the restriction as
nonjurisdictional”).
Moreover, even if petitioners’ arguments were
jurisdictional, nothing in Lorazepam would allow us to consider
them in deciding whether to grant their Rule 23(f) petition.
Rather, Lorazepam’s reference to jurisdictionally related non-
Rule 23 issues merely acknowledges that even after we have
exercised our Rule 23(f) discretion to entertain an interlocutory
appeal because it presents Rule 23 issues, our ability to
adjudicate those questions remains limited by the confines of
our jurisdiction. Read otherwise, that language would not only
permit end runs around the final judgment rule, see 28 U.S.C.
§1291 (generally restricting appellate review to “final decisions
of the district courts of the United States”), but would also
undermine Lorazepam: “What matters for purposes of Rule
23(f) is whether the issue is related to class certification itself,”
289 F.3d at 107.
In dismissing this Rule 23(f) petition, we emphasize not
only that petitioners’ individual claims can go forward in the
district court, but also that, after final judgment, petitioners may
appeal the Title VII issues they seek to raise here. Today we
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simply decline to consider these issues on an interlocutory basis.
We dismiss the petition to appeal.
So ordered.