In re: Herman Brewer ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2016 Decided July 21, 2017
No. 15-8009
IN RE: HERMAN BREWER, INDIVIDUALLY AND ON BEHALF OF A
CLASS OF ALL OTHER PERSONS SIMILARLY SITUATED,
PETITIONER
On Petition for Permission to Appeal Pursuant to
Federal Rule of Civil Procedure 23(f)
(No. 1:08-cv-01747)
Thomas J. Henderson argued the cause for petitioner.
With him on the briefs was David W. Sanford.
Joshua M. Salzman, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Marleigh D. Dover, Attorney.
______
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No. 16-5285
KEITH HARRINGTON, ET AL.,
APPELLANTS
v.
JEFF SESSIONS, U.S. ATTORNEY GENERAL,
APPELLEE
Consolidated with 16-5286
Appeals from the United States District Court
for the District of Columbia
(No. 1:08-cv-01747)
Before: BROWN, Circuit Judge, and EDWARDS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: This case comes to the
court on a petition for interlocutory appeal of the district court’s
denial of certification for a class consisting of African-
American deputy U.S. Marshals alleging racial discrimination
by the United States Marshals Service (USMS). The district
court denied class certification on the ground that the sole
named plaintiff, Herman Brewer, did not satisfy the adequacy
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and typicality requirements of Federal Rule of Civil Procedure
23(a) because, as a former USMS employee, he lacked
standing to pursue class-wide injunctive relief.
Brewer petitioned this court for interlocutory review under
Rule 23(f) but, while his petition was pending, he settled his
individual claims with the Government, and the parties
stipulated to the dismissal of the action in district court
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
That rule allows the parties voluntarily to dismiss a suit without
a court order by filing a jointly signed stipulation with the
court. Upon notice of the stipulation, four current and former
deputy U.S. Marshals moved to intervene in this court in order
to pursue the petition Brewer had filed to review the district
court’s denial of class certification.
For the reasons discussed below, we grant the motion to
intervene but decline the petition for review as presenting no
question that falls within our discretion to hear an interlocutory
appeal under the framework announced in Lorazepam &
Clorazepate Antitrust Litigation, 289 F.3d 98 (D.C. Cir. 2002).
We remand the case to the district court to entertain motions to
substitute absent class members as named plaintiffs and such
further proceedings as may be warranted.
I. Background
The lengthy and somewhat convoluted history of this case
is depicted in the figure below and described in the following
paragraphs.
4
2008
Complaint
Filed
In October 2008 deputy U.S. Marshal David Grogan filed
a putative class action against the USMS on behalf of himself
and similarly situated current and former African-American
deputy U.S. Marshals, alleging racial discrimination in
violation of Title VII of the Civil Rights Act of 1964. Although
the suit was also for monetary damages, the class complaint
states that “[i]njunctive and declaratory relief are the
predominant forms of relief sought . . . because they are
absolutely necessary to the cessation of discrimination and
elimination of the effects of past discrimination.” The current
complaint alleges the USMS has violated Title VII through
three policies or practices. First, it challenges several features
of the USMS’s Merit Promotion Plan that allegedly impede the
promotion of African-American employees. Second, the
complaint claims the Marshals’s practice of noncompetitively
selecting employees for lateral duty assignments diminishes
class members’ opportunities for career advancement. Finally,
it claims USMS procedures have disproportionately excluded
African-Americans from career-enhancing “Headquarter duty
assignments.”
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A. Herman Brewer
The putative class originally advanced five types of
claims, relating to pay awards, training, internal investigations,
assignments, and promotions, only the last two of which
survive in the current litigation. In 2010 Grogan, the original
and then-sole named plaintiff, moved to amend the class
complaint to add Brewer and Fayette Reid as class
representatives for claims relating to awards, training,
assignments, and promotions. The district court granted the
motion in relevant part. In 2013 Grogan filed a stipulation of
dismissal of his individual claims and dropped out of the
action.
Before Grogan exited the litigation, the Government had
moved for summary judgment on all claims. Later in 2013 the
district court granted the motion in part, eliminating the claims
relating to awards, training, and investigations. Brewer v.
Holder, 20 F. Supp. 3d 4, 17-23 (D.D.C. 2013); Brewer v.
Holder, No. 08-CV-1747, at 3-4 (D.D.C. Oct. 11, 2013). This
effectively eliminated Reid as class representative for her now-
dismissed claims relating to awards, training, and assignments.
As a result, by October 2013, Brewer was the sole named
plaintiff representing only the assignments and promotions
claims.
By statute, deputy U.S. Marshals face mandatory
retirement at age 57. 5 U.S.C. § 8335(b)(1). Brewer, who
turned 57 in July 2013, received extensions totaling eight
months and retired from the USMS on March 31, 2014.
Class discovery closed in June 2014, and Brewer filed two
motions on July 1, 2014, three months after he retired and more
than four years after a deadline set by scheduling orders to
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amend the complaint. The first motion sought leave to amend
the complaint to substitute four additional plaintiffs as class
representatives. The district court denied that motion in April
2015, holding Brewer had not diligently pursued substitution
upon notice of his impending retirement and the departure of
the other named plaintiffs.
The second motion was for class certification. The
Government opposed certification on several grounds. First, it
argued the proposed class definition was ambiguous and
overbroad. Second, the Government contended Brewer was an
inadequate class representative because, as a former employee,
he lacked standing to pursue injunctive relief. Third, it pointed
to intra-class conflicts between USMS subordinates and
supervisors (including Brewer), thereby arguably making him
an inadequate class representative. Finally, the Government
challenged whether the class complaint satisfied the
commonality, typicality, and predominance prerequisites to
certification under Rule 23(a) and (b)(3).
In September 2015 the district court denied class
certification. Specifically, the court held that, although the
complaint sufficiently defined a class of USMS employees,
Brewer, as a former employee ineligible for reinstatement,
could not adequately represent a class that predominantly
sought injunctive relief. Nor were Brewer’s individual claims
for monetary damages typical of class-wide claims for
injunctive relief. Although the court said the “Plaintiffs face a
significant challenge in meeting the three remaining
prerequisite[s] [other than numerosity],” it did not reach the
Government’s other challenges “because it is abundantly clear
that Plaintiffs’ sole proposed class representative cannot
adequately represent the class members’ interests.” The district
court further refused to certify a narrower class seeking only
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damages, reasoning that doing so would amount to “claim
splitting” and risked “jeopardizing the class members’ ability
to subsequently pursue other claims.”
Brewer timely petitioned this court for interlocutory
review of the denial of class certification pursuant to Rule
23(f).
B. Settlement and Intervention
Starting with the denial of Brewer’s two July 2014
motions, the history of this case is depicted in the figure below
and described in the following paragraphs.
D.C. Cir.
Motion to
Consolidate
D.D.C.
While his petition was pending, Brewer also engaged in
confidential settlement negotiations with the Government.
They reached an agreement disposing of his individual claims,
and on July 22, 2016 Brewer filed a stipulation of dismissal
pursuant to Rule 41(a)(1)(A)(ii). The same day Keith
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Harrington, Melanie Thompson, Mariam Rodgers, and
Frederick Robinson filed a motion to intervene in order to
continue pursuing the petition for interlocutory review in this
court. They also moved to intervene in the district court in order
to appeal the denial of class certification. Three of the four
would-be intervenors are current African-American employees
of the USMS, who presumably have standing to seek injunctive
relief, and one, like Brewer, is a former employee.
In light of the stipulated dismissal and the motion for
intervention, we directed the parties to argue the merits of
intervention, of interlocutory review, and of class certification
before this court. Following oral argument but while their
motion for intervention in the district court remained pending,
the intervenors filed with this court a notice of appeal from the
stipulated dismissal of Brewer’s individual claims, from the
order denying class certification, and from the effective denial
of their motion for intervention within the time to appeal. They
did so in order to meet the 60-day deadline for appeal from a
final judgment, which they thought dated from the filing of the
stipulated dismissal. On October 25, 2016 the district court
issued a minute order dismissing the motion to intervene,
reasoning the notice of appeal stripped it of jurisdiction to rule
on intervention. As a result of these events, no further claims
or motions remain pending in the district court, and the would-
be intervenors’ petition and appeal from the denial of class
certification are pending in this court. On February 2, 2017 the
intervenors moved to consolidate Brewer’s petition and their
appeal. We now address the petition for permission to appeal
and the motion for intervention in this court. Addressing these
matters disposes of the need to reach the latter appeal.
On the merits, we face, at most, three questions:
(1) whether to grant the motion to intervene; (2) if so, whether
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to grant the petition for interlocutory review under Rule 23(f);
and (3) whether the district court abused its discretion in
denying certification of the class of current and former African-
American deputy U.S. Marshals. See Garcia v. Johanns, 444
F.3d 625, 631 (D.C. Cir. 2006) (reviewing the merits of class
certification for abuse of discretion).
II. Jurisdiction
Before reaching the merits, however, we must assure
ourselves of our jurisdiction to decide these questions. The
basic problem arises from the series of events described above.
First, after the district court denied class certification, only
Brewer’s individual claims remained pending before that court
while he pursued his petition for interlocutory review. Then
Brewer settled his individual claims and stipulated to their
dismissal, depriving both the district court and this court of any
live claims or adverse parties unless one of the two motions for
intervention is granted. But in order to grant intervention, either
this court or the district court must have jurisdiction over the
case, notwithstanding the apparent absence of either live claims
or adverse parties at the moment. 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 circle is broken, however, because we
have jurisdiction to determine our own jurisdiction, United
States v. Ruiz, 536 U.S. 622, 628 (2002), and we conclude we
have jurisdiction to hear the motion for intervention. See In re
Thornburgh, 869 F.2d 1503, 1510 (D.C. Cir. 1989) (approving
intervention in a class action after the named plaintiff’s
individual claims were mooted so as to retain jurisdiction over
the case).
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The jurisdictional question in this case involves two
complications, the interaction of which neither this nor any
other Circuit court has confronted. First, we must determine the
effect of a stipulated dismissal upon a subsequent motion for
intervention for the purposes of appealing. Then, we must
consider how the only named plaintiff’s stipulated dismissal of
his individual claims affects whether absent members of a
putative class can appeal the denial of class certification.
Ultimately, we conclude the answer to these questions is no
different for a stipulated dismissal than for a dismissal by court
order, after which intervention for the purpose of appealing a
denial of class certification is certainly available. See United
Airlines, Inc. v. McDonald, 432 U.S. 385, 392-94 (1977).
A. Stipulated Dismissal and Intervention
We begin with the effect of a stipulated dismissal on the
jurisdiction of a federal court to hear a post-dismissal motion
for intervention. On this account, one thing is clear both in this
Circuit and all others that have addressed the matter: A
stipulated dismissal is “effective automatically” upon filing
and requires no further action on behalf of a district court in
order to constitute a final judgment, ripe for appeal. In re Wolf,
842 F.2d 464, 466 (D.C. Cir. 1988) (per curiam) (quoting
Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir.
1984)); see also, e.g., State Nat’l Ins. v. County of Camden, 824
F.3d 399, 406-07 (3d Cir. 2016); Marex Titanic, Inc. v.
Wrecked & Abandoned Vessel, 2 F.3d 544, 546-47 (4th Cir.
1993) (applying Rule 41(a)(1)(A)(i)); Anago Franchising, Inc.
v. Shaz, LLC, 677 F.3d 1272, 1277-78 (11th Cir. 2012). Beyond
this generally recognized rule, no opinion details with precision
the practical effect of a stipulated dismissal upon a district
court’s jurisdiction. See, e.g., SmallBizPros, Inc. v.
MacDonald, 618 F.3d 458, 461 (5th Cir. 2010) (“a district
11
court’s jurisdiction over a case that is settled and voluntarily
dismissed by stipulation cannot extend past the filing date
absent an express contingency or extension of jurisdiction”)
(criticized for its “imprecise language” by Sommers v. Bank of
America, 835 F.3d 509, 513 n.5 (5th Cir. 2016)); Hinsdale v.
Farmers Nat’l Bank & Trust Co., 823 F.2d 993, 995-96 (6th
Cir. 1987) (stipulated dismissal “terminated the district court’s
jurisdiction except for the limited purpose of reopening and
setting aside the judgment of dismissal within the scope
allowed by Rule 60(b)” (internal quotation marks omitted)); De
Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011) (“A
stipulation of dismissal . . . is self-executing and immediately
strips the district court of jurisdiction over the merits”).
Some Circuits have reasoned the “jurisdiction-stripping”
effect of a stipulated dismissal precludes a district court from
taking further action on motions made after, or even before, the
dismissal. Those decisions suggest that upon the stipulated or
voluntary dismissal of the current parties’ claims, a court may
lack jurisdiction to review a non-party’s motion for
intervention. See Marex Titanic, 2 F.3d at 545-47; Bond v.
Utreras, 585 F.3d 1061, 1071-72 (7th Cir. 2009); United States
v. Ford, 650 F.2d 1141, 1142-43 (9th Cir. 1981) (judicially
approved voluntary dismissal). But see Sommers, 835 F.3d at
513 n.5 (rejecting this position); State of Alaska v. Suburban
Propane Gas Corp., 123 F.3d 1317, 1320-21 (9th Cir. 1997)
(same for the effect of a voluntary dismissal by court order
under Rule 41(a)(2)).
In our view, a stipulated dismissal, aside from its
immediate effectiveness, is no different in jurisdictional effect
from a dismissal by court order: Each resolves all claims before
the court, leaving it without a live Article III case or
controversy. Cf. Catlin v. United States, 324 U.S. 229, 233, 236
12
(1945). The absence of a live controversy, then, not any special
feature of a stipulated dismissal, is what deprives the district
court of continuing jurisdiction. It follows that any action a
court can take despite having dismissed a case as moot, such as
substituting an adverse party for a non-adverse party, it can also
take following the entry of a stipulated dismissal. See
Alternative Research & Dev. Found. v. Veneman, 262 F.3d
406, 410 (D.C. Cir. 2001) (“our jurisdiction to review [a denial
of intervention] is not affected by the fact that the district court
denied intervention after the stipulated dismissal was entered;
the dismissal does not render the appeal moot”).
Several Circuits have framed the jurisdictional effect of a
stipulated dismissal in sweeping terms, see, e.g., SmallBizPros,
618 F.3d at 461, but none has suggested that effect is unique to
a stipulated dismissal, as opposed to a court-ordered dismissal,
see Ford, 650 F.2d at 1142-43 (identifying mootness as the
reason for the court’s lack of jurisdiction to hear a motion for
intervention); Bond, 585 F.3d at 1071-72 (same for
intervenor’s lack of standing). Nor is there anything in Rule
41(a)(1)(A)(ii) (stipulated dismissals), or in the remainder of
Rule 41 (dismissals in general), that suggests a stipulated
dismissal is in any way jurisdictionally unique. Cf. Randall v.
Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987) (noting
“nothing in the language of Rule 41(a)(1)(i) exempts voluntary
dismissals from the scope of judicial authority under Rule
60(b)”) (cited by Wolf, 842 F.2d at 466, as informative on the
effect of a stipulated dismissal). 1
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There is one way, not relevant here, in which a voluntary dismissal
post-settlement pursuant to Rule 41(a) does uniquely affect the
jurisdiction of the district court: The court’s jurisdiction to enforce a
settlement depends upon whether the parties have incorporated it in
a judicial order of dismissal under Rule 41(a)(2). See, e.g., Kokkonen
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Moreover, the Supreme Court has repeatedly advised
against giving jurisdictional significance to statutory
provisions that do not clearly “speak in jurisdictional terms.”
See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 510-16 (2006)
(quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394
(1982). Finally, if a stipulated dismissal deprived the court of
jurisdiction to hear a motion for intervention filed by absent
members of a putative class, then a class action defendant could
simply “‘buy off’ the individual private claims of the named
plaintiffs” in order to defeat the class litigation, a strategy the
Supreme Court has said “would frustrate the objectives of class
actions” and “waste . . . judicial resources by stimulating
successive suits” “contrary to sound judicial administration.”
Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S.
326, 338-39 (1980). For these reasons, we conclude that
mootness, albeit accelerated by the immediacy of a stipulated
dismissal, is what gives a dismissal pursuant to Rule
41(a)(1)(A)(ii) its jurisdictional effect. And if a motion to
intervene can survive a case becoming otherwise moot, then so
too can a motion to intervene survive a stipulated dismissal.
B. Class Certification and Mootness
It is well established that mootness alone does not strip a
district (or an appellate) court of jurisdiction to hear a motion
to intervene for the purpose of appealing the dismissal of
claims pending before the court, provided, of course, the
intervenor has an Article III stake sufficient to pursue an
appeal. See Acree v. Republic of Iraq, 370 F.3d 41, 49-50 (D.C.
Cir. 2004); Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir.
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994);
Anago Franchising, 677 F.3d at 1278-80.
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2001); cf. Bond, 585 F.3d at 1071-72 (intervention denied post-
dismissal due to lack of Article III standing). It is similarly
clear that a previously absent class member may have a
sufficient interest to appeal the denial of a motion for class
certification even if the named plaintiff does not appeal. Twelve
John Does v. District of Columbia, 117 F.3d 571, 575 (D.C.
Cir. 1997); McDonald, 432 U.S. at 392-94; cf. U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 402 (1980) (holding even
a named plaintiff whose individual claims are moot retains a
“personal stake” in representing the class jurisdictionally
sufficient to appeal the denial of class certification). This, even
though the would-be intervenor-appellant is not a party to the
case who could appeal an adverse decision. See Phillips v. Ford
Motor Co., 435 F.3d 785, 787 (7th Cir. 2006) (Posner, J.) (“The
courts thus disregard the jurisdictional void that is created
when the named plaintiffs’ claims are dismissed and, shortly
afterwards, surrogates step forward to replace the named
plaintiffs. This may seem irregular; but maybe there isn’t really
a jurisdictional void, since the class member who steps forward
to take the place of the dismissed plaintiff has a real
controversy with the defendant.”) (internal citations omitted).
When 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. Cf.
Twelve John Does, 117 F.3d at 575. 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.
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C. Microsoft v. Baker
The Supreme Court’s recent decision in Microsoft Corp.
v. Baker, 137 S. Ct. 1702 (2017) does not change this result. In
that case, the district court had issued an order striking the class
action allegations in the complaint, and the Ninth Circuit
denied a petition for interlocutory review. 797 F.3d 607, 611
(2015). The sole named plaintiff then voluntarily stipulated to
the dismissal of his individual claims in order immediately to
create what under then-controlling Ninth Circuit precedent was
a final judgment ripe to appeal the interlocutory order striking
the class allegations. Id. The court heard the appeal and vacated
the order. The Supreme Court reversed, concluding the
voluntary dismissal was not a final judgment, as is required to
pursue an appeal per 28 U.S.C. § 1291. 137 S. Ct. at 1712-13.
The Court reasoned that the “voluntary-dismissal tactic” to
precipitate an immediate appeal of class certification despite a
prior denial of interlocutory review clashed with the purposes
and history of both 28 U.S.C. § 1291 and Rule 23(f) and
undermined the usefulness of the latter provision. Id. at 1712-
15.
The procedural posture and the facts of this case are far
different. Here we consider solely a petition for review under
Rule 23(f); the statutory issue in Microsoft is not present in this
case. Furthermore, the equitable and policy considerations at
work in Microsoft have little force in this case: The plaintiff in
Microsoft had opportunistically dismissed his individual
claims in order to get review of an issue – class certification –
for which he had been denied interlocutory review. The would-
be intervenors here have not resorted to any questionable
tactics. They had no reason to doubt Brewer was adequately
representing their interests in seeking interlocutory review –
until, that is, they learned he had settled his claims, whereupon
16
they moved immediately to intervene in order to protect their
interests in the 23(f) petition. Indeed, even Brewer, far from
being opportunistic, expressed his regret that, despite his years-
long effort, he was “unable [to] accomplish the objective for
which he risked his career.” These legal, procedural, and
equitable differences render Microsoft inapplicable here.
Therefore, sure of our jurisdiction, we turn to the merits of the
motion to intervene and the petition for review.
III. Intervention of Right
Federal Rule of Civil Procedure 24(a)(2) provides a
nonparty may intervene in an ongoing action as a matter of
right when it:
claims an interest relating to the property or
transaction that is the subject of the action, and
is so situated that disposing of the action may as
a practical matter impair or impede the
movant’s ability to protect its interest, unless
existing parties adequately represent that
interest.
There is no question we may address the question of
intervention in the first instance on appeal. “[J]udicial economy
is better served by th[e] Court deciding whether appellants
have made a sufficient showing under Rule 24” rather than
“remanding to the district court for that decision.” Foster v.
Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981). Indeed, we
must address the motion for intervention before considering the
petition for interlocutory review because only a party may
appeal an adverse order. See Mova Pharm. Corp. v. Shalala,
140 F.3d 1060, 1076 (D.C. Cir. 1998) (reviewing elements of
17
Rule 24(a)(2) not reached by district court in order to assure the
appellate court of intervenors’ status as parties-appellant).
In this case, the need to address the motion to intervene on
appeal is paramount. Although the would-be intervenors also
have moved to intervene below, the district court dismissed that
motion, reasoning that the would-be intervenors’ notice of
appeal rendered it without jurisdiction to consider their motion
to intervene. The intervenors have also appealed the district
court’s dismissing their motion to intervene. As such, the only
live motion to intervene lies before this court. If intervention is
denied now (and if we decline to consolidate the petition and
the appeal from final judgment), then this court will later face
the district court’s decision to dismiss the would-be
intervenors’ second motion to intervene on direct appeal from
the final judgment. Either way, this court will address
intervention on appeal. “Denial of intervention in the initial
review proceedings – and the attendant remand . . . and second
appeal to the Court of Appeals – only results in a delay of the
time when the disaffected party may seek review.” Int’l Union,
United Auto., Aerospace & Agric. Implement Workers of Am.
AFL-CIO, Local 283 v. Scofield, 382 U.S. 205, 212-14 (1965)
(“To allow intervention . . . in the first appellate review
proceeding is to avoid ‘unnecessary duplication of
proceedings,’ and to adhere to the goal of obtaining ‘a just
result with a minimum of technical requirements’”).
As to the merits of intervention, the prospective
intervenors must satisfy the four requirements of Rule 24(a)(2):
(1) the motion for intervention must be timely; (2) intervenors
must have an interest in the subject of the action; (3) their
interest must be impaired or impeded as a practical matter
absent intervention; and (4) the would-be intervenor’s interest
must not be adequately represented by any other party. For its
18
part, the Government does not meaningfully oppose
intervention on the merits but uses its brief in opposition mostly
to reiterate its objections to interlocutory review. This approach
is particularly problematic because “the burden of proof” on
certain aspects of intervention “rests on those resisting
intervention.” SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1390
(D.C. Cir. 1980) (discussing the adequacy of representation).
Despite the Government’s omission, we consider each of the
factors listed above to determine whether the intervenors’
motion, accepted as true, meets the standard of Rule 24(a)(2).
Timeliness. A nonparty must timely move for
intervention once it becomes clear that failure to intervene
would jeopardize her interest in the action. McDonald, 432
U.S. at 394. As already mentioned, the appellants filed their
motion to intervene the same day Brewer filed the stipulation
of dismissal. That the intervenors “could have intervened
earlier,” say, after Brewer’s retirement or after the denial of
class certification, does not mean they “should have intervened
earlier,” making their motion untimely. See Roane v. Leonhart,
741 F.3d 147, 152 (D.C. Cir. 2014). As with the named
plaintiffs in McDonald, Brewer had vigorously defended his
adequacy to represent the class on the motion for certification
and in a subsequent petition for interlocutory review of its
denial. 432 U.S. at 388-90. As in both cases, and in Smoke v.
Norton, 252 F.3d 468 (D.C. Cir. 2001), the inadequacy of the
plaintiff to represent the intervenors’ interest became certain
only when the named plaintiffs decided not to pursue an appeal
from an unfavorable decision. McDonald, 432 U.S. at 394;
Smoke, 252 F.3d at 469. Therefore the intervenors’ motion was
timely.
Interest. In order to intervene as a matter of right, a
nonparty must claim an interest in the property or transaction
19
that is the subject of the action. We have recognized such an
interest among “persons who allege that they have suffered
injury from the same or very similar wrongful acts as those
complained of by the original plaintiffs.” Foster, 655 F.2d at
1324. Because class-wide adjudication of this shared interest is
“compatible with efficiency and due process,” we have
consistently granted motions to intervene as of right in
employment discrimination class actions. Id. at 1324; accord
Cook v. Boorstin, 763 F.2d 1462, 1466-70 (D.C. Cir. 1985).
Clearly, the would-be intervenors have at least as much at stake
in this case as had Brewer.
Impairment. In order to intervene of right, a nonparty’s
interest in the transaction must be one that would be impaired
absent intervention. Undue delay or unnecessary litigation
burdens have the “practical consequence” of impairing third
party interests in the efficient assertion of their rights. See Fund
for Animals v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003); Nat.
Res. Def. Council v. Costle, 561 F.2d 904, 910-11 (D.C. Cir.
1977) (“questions of ‘convenience’ are clearly relevant . . .
[because the intervenors’] involvement may lessen the need for
future litigation to protect their interests”). Although the
intervenors might protect their rights “by bringing a separate
lawsuit,” separate litigation would “be difficult and
burdensome.” Fund for Animals, 322 F.3d at 735. This is
especially true here because, in the wake of Brewer’s
settlement, the adequacy and typicality grounds upon which the
district court denied certification are not relevant to whether the
same class with a different representative plaintiff would be
appropriate. If we were to decline review under Rule 23(f), then
the now-mooted questions concerning Brewer’s adequacy
would come back to us in the would-be intervenors’ appeal
from the final judgment, further delaying resolution of the issue
of class certification, including those questions flagged as
20
potentially problematic by the district court. See Brewer v.
Lynch, No. 08-CV-1747, at 15 (D.D.C. Sept. 30, 2015)
(addressing only Brewer’s adequacy and typicality but noting
“Plaintiffs face a significant challenge in meeting the three
remaining prerequisite[s]” of class certification). Denying
intervention now would push the resolution of these questions
further into the future and benefit neither the intervenors, the
Government, nor the courts.
Adequacy. Intervention of right is appropriate only if the
current parties to the case are inadequate to represent the
interests of the intervenors. Neither the Government nor the
intervenors argue that Brewer remains adequate to pursue this
petition or to represent a class of current USMS employees.
This alone meets the “minimal” burden of showing the
inadequacy of the current representative. See Hodgson v.
United Mine Workers of Am., 473 F.2d 118, 130 (D.C. Cir.
1972) (noting intervenors “need not prove that representation
. . . is inadequate but need show merely that it may be”).
*****
Because the intervenors satisfy all the requirements of
Rule 24(a)(2), we grant the motion for intervention to pursue
the petition for interlocutory review, to which we turn next.
IV. Interlocutory Review per Rule 23(f)
Ordinarily, an appellate court reviews only final
judgments of the district court. See 28 U.S.C. § 1291. Federal
Rule of Civil Procedure 23(f) creates an exception to this rule
for review of the certification of a class action:
21
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 14 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.
Interlocutory review ordinarily is appropriate only in these
limited circumstances:
(1) when there is a death-knell situation for
either the plaintiff or defendant that is
independent of the merits 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.
In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98,
99-100 (D.C. Cir. 2002). Additionally, there may be other
“[s]pecial circumstances” that “do[] not fit neatly within one of
the three categories” but may nonetheless support interlocutory
review. In re Rail Freight Fuel Surcharge Antitrust Litig., 725
F.3d 244, 253 (D.C. Cir. 2013). We strictly adhere to these
criteria because “interlocutory appeals are generally disfavored
22
as disruptive, time-consuming, and expensive for both the
parties and the courts.” Id. at 254 (quoting Lorazepam, 289
F.3d at 103) (internal quotation marks omitted). As shown
below, this case is no exception.
Death Knell. For defendants, only in the “rare instances”
when “the grant of class status raises the cost and stakes of the
litigation so substantially that a rational defendant would feel
irresistible pressure to settle” is there a death-knell concern. Id.
at 251 (quoting Prado-Steiman ex rel. Prado v. Bush, 221 F.3d
1266, 1274 (11th Cir. 2000)). We have not previously
addressed a situation in which a plaintiff raises death-knell
concerns, nor is this such a case. Perhaps recognizing that, the
intervenors merely imply that declining review will be the
death-knell for their case. We therefore consider this claim only
“[o]ut of an abundance of caution.” In re Johnson, 760 F.3d 66,
72 (D.C. Cir. 2014).
The petitioners refer to “high expert costs and other
expenses” that “substantially exceed Title VII’s $300,000 cap
on compensatory and punitive damages,” which arguably
might pressure them to settle independent of the merits if we
decline review. This point is now moot vis-a-vis Brewer; he
settled his individual claims before this court considered the
Rule 23(f) petition, which eliminated the risk that he would
face undue pressure to settle absent interlocutory review.
Neither do the intervenors face a death-knell situation if we
decline review. They have appealed class certification from
final judgment, thereby demonstrating their intent to continue
the litigation regardless whether we grant the Rule 23(f)
petition.
Fundamental Issue of Class Action Law. Interlocutory
review is appropriate if the certification decision presents an
23
“[1] unsettled and fundamental issue of law relating to class
actions, [2] important both to the specific litigation and
generally, [3] that is likely to evade end-of-the-case review.”
Lorazepam, 289 F.3d at 99-100. All these elements are
necessary. See In re Veneman, 309 F.3d 789, 795 (D.C. Cir.
2002) (denying interlocutory review of an unsettled,
fundamental, and important question of class action law that
was not “likely to evade end-of-the-case review”).
We have observed that the “ease with which litigants can
characterize legal issues as novel . . . militate[s] in favor of
narrowing the scope of Rule 23(f) review.” Lorazepam, 289
F.3d at 105-06. Brewer’s transformation of “familiar and
almost routine issues,” id. at 103, into purportedly
“fundamental” issues of law is no more successful than other
alchemic efforts.
He contends the district court 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.” Had the
court done so, that might indeed be novel. Rather, it reviewed
facts specific to the case at hand in holding Brewer, being
retired and ineligible to pursue injunctive relief, was not an
adequate representative of the proposed class. This ruling is
neither novel nor particularly important, nor likely to escape
review at the end of the case.
Manifest Error. Review of a manifestly erroneous
certification decision serves judicial economy “if for no other
reason than to avoid a lengthy and costly trial that is for naught
once the final judgment is appealed.” Lorazepam, 289 F.3d at
105. In this case, however, with Brewer having settled his
individual claims, stipulated their dismissal, and exited the
lawsuit, there will be no “lengthy and costly trial” in the district
24
court before reviewing the class certification decision after the
entry of a final judgment.
The manifest error standard is extremely difficult to meet.
To date this court has never held a district court’s class
certification decision manifestly erroneous. Johnson, 760 F.3d
at 72. “It is difficult to show that a class certification order is
manifestly erroneous . . . simply because class actions typically
involve complex facts that are unlikely to be on all fours with
existing precedent.” Id. (quoting Chamberlan v. Ford Motor
Co., 402 F.3d 952, 962 (9th Cir. 2005)).
Brewer first claims the district court manifestly erred in
finding him inadequate to represent a class seeking damages by
virtue of his ineligibility to seek injunctive relief as a former
employee. This rehashes his earlier contention that the district
court crafted a novel rule of class action law, which we rejected
above and reject again here.
Second, Brewer contends the district court manifestly
erred by misapplying res judicata principles to class actions
when it declined to allow Brewer to split class-wide claims for
damages from those for injunctive relief:
Nor can Plaintiffs remedy Brewer’s inability to
adequately represent the class by simply
abandoning the declaratory and injunctive relief
claims. Such action would constitute claim
splitting, something that is generally prohibited
by the doctrine of res judicata, particularly in
class actions. Courts closely scrutinize claim
splitting by a class representative and do not
permit such a plaintiff to ‘opt to pursue certain
claims on a class-wide basis while jeopardizing
25
the class members’ ability to subsequently
pursue other claims.’
Brewer, No. 08-CIV-1747, at 19 (D.D.C. Sept. 30, 2015)
(citations omitted). The district court could reasonably have
concluded that, by abandoning injunctive relief, the
“predominant” form of class-wide relief, for which Brewer was
ineligible, in favor of certifying a damages class, for which he
had standing, Brewer was acting contrary to the interests of
absent class members. Although one could disagree with the
district court’s balance between the risk of preclusion and the
benefit of allowing Brewer to pursue his claims on a class-wide
basis, this is not the stuff of which manifest error is made.
Brewer next contends the district court manifestly erred in
failing to use discretionary case management tools to mitigate
its res judicata concerns: The court could have certified a
subclass of former employees; or relied upon class members to
opt-out so as to mitigate potential preclusion in a Rule 23(b)(3)
action seeking damages only; or conducted a two-stage
Teamsters proceeding with class-wide liability preceding
determinations of individual relief, see Int’l Bhd. of Teamsters
v. United States, 431 U.S. 324, 360-61 (1977); or certified a
Rule 23(c)(4) issue class on liability alone. But each of these
tools is discretionary, not mandatory. The district court might
have expanded on its decision not to use case management
tools, but its failure to do so was not a manifest error.
Finally, Brewer contends the district court committed a
manifest error by refusing to substitute alternative plaintiffs to
overcome his inadequacy as a class representative. Substitution
of a new named plaintiff to address the inadequacy of a class
representative, a routine feature of class actions, also lies
within the district court’s discretion. See Thornburgh, 869 F.2d
26
at 1509. Here, the court denied Brewer’s motion to amend the
complaint by adding new class representatives because he filed
the motion more than a year after receiving notice of his
impending mandatory retirement, thereby failing to show the
“good cause” needed to amend the complaint after the deadline
set by a scheduling order. Brewer’s lack of diligence precludes
our treating the district court’s exercise of discretion as a
manifest error.
In a seeming afterthought, Brewer also asserts there are
“special circumstances” warranting review, based upon our
having said the “confluence of multiple rationales” under the
Lorazepam framework, though insufficient individually, may
nonetheless cumulatively favor interlocutory review. See
Johnson, 760 F.3d at 76 (quoting Freight Fuel, 725 F.3d at
250). In this case, none of the rationales comes close to meeting
any of our criteria for review: Ex nihilo nihil fit.
V. Conclusion
To summarize, we grant the motion for intervention and
deny the petition for interlocutory review under Rule 23(f). We
also grant the motion to consolidate the petition and the appeal
and dismiss the appeal from final judgment, which restores the
district court’s jurisdiction over the case. On remand, the
district court should allow a reasonable time for the intervenors
to file both a motion to substitute a new class representative
and a renewed motion for class certification.
So ordered.