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No Interlocutory Review of Class Certification

In this class action litigation, the 4th Circuit denies interlocutory review of the district court’s refusal to decertify a class alleging hostile work environment claims.

This litigation concerns substantive allegations of racial discrimination, however, only the procedural history is relevant to this order. The district court initially denied plaintiffs’ motion for class certification, and we vacated and remanded for certification. In 2011, the district court issued an order certifying two classes: a promotions class – involving disparate treatment and disparate impact claims – and a hostile work environment class. The district court denied a motion to reconsider the certification order, and employer then filed four motions for decertification. After denying the first motion, the district court granted in part the second motion for decertification, in the “2012 Order.”

In light of Wal-Mart Stores Inc. v. Dukes, 131 S.Ct. 2541 (2011), the 2012 Order decertified the promotions class yet left intact the hostile work environment class. After the court denied a third motion to decertify, employer sought decertification of the hostile work environment class in light of Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013). The district court denies this motion. Nucor now embarks on a second attempt to file an interlocutory appeal challenging the refusal to decertify the hostile work environment claim.

An appeal from a certification order must be filed within 14 days of the order. The time for appeal runs once the original order on certification is entered, and begins anew only after the court rules on a timely motion to reconsider that original order. An out-of-time motion for reconsideration – regardless of whether the motion is styled as one for reconsideration or for decertification – cannot restart the clock for appellate review under Fed. R. Civ. P. 23(f). Further, the time for appeal will not reset when a court rules on certification motions filed subsequent to the original ruling so long as the later rulings do not alter the original ruling.

We find employer’s instant petition untimely. The fourth motion for decertification, filed two years after the certification order, represents employer’s latest attempt at persuading the district court to decertify the hostile work environment class. The district court’s post-certification orders never altered the status of the hostile work environment class and thus were not orders granting or denying certification as to that class.

We will not render the Rule 23(f) deadline “toothless” by permitting employer to easily circumvent Rule 23(f)’s deadline by filing a motion to amend or decertify the class at any time after the district court’s original order certifying the hostile work environment class.

The latest point at which employer could have appealed the certification of the hostile work environment claim was 14 days after the district court denied the motion to reconsider the certification order. That date passed more than three years ago.

Petition denied.

Nucor Corp. v. Brown (Gregory) No. 14-154, July 25, 2014. VLW 014-2-143, 5 pp.



VLW 014-2-143

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