May 23, 2019 Articles

Must You Take “No” for an Answer?

Options after an adverse Rule 23(f) ruling in theory and practice.

By Martin Woodward

A circuit court’s denial of your petition for permission to appeal under Federal Rule of Civil Procedure 23(f) is, of course, your second consecutive adverse decision on class certification. But is it necessarily the final word? More specifically, are there other means by which you may still challenge the district court’s order, even after the circuit court’s ruling?

In Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), the Ninth Circuit had denied the plaintiffs’ Rule 23(f) petition, prompting the plaintiffs to voluntarily dismiss their claims with prejudice so that the court of appeals could then review the district court’s class certification ruling in the context of a non-interlocutory appeal. On those facts, the Supreme Court held that the Ninth Circuit had no jurisdiction to review the class certification order, rebuffing what it saw as a too-clever stratagem that sought to dress up an interlocutory class certification order as final and appealable. But in ruling out this particular course of action, the Supreme Court discussed several other options for recipients of adverse Rule 23(f) rulings, effectively ratifying them as viable ways forward, if not endorsing them outright.

In this discussion, the Supreme Court specifically mentioned Rule 23(c)(1)(C)—allowing for the alteration or amendment of a class certification order by the district court before final judgment—as a mechanism available to an unsuccessful Rule 23(f) petitioner. By doing so, the Supreme Court not only acknowledged the procedural validity of oft-seen motions to decertify by defendants; it also invited plaintiffs who failed in their initial attempt at class certification to take another bite at the apple.

And Microsoft Corp. v. Baker explicitly blessed another strategic choice for litigants following an unsuccessful Rule 23(f) petition outside the scope of Rule 23. As the Supreme Court noted, after the Ninth Circuit rejected their Rule 23(f) petition, the plaintiffs nevertheless could have asked the district court to certify its interlocutory order denying class certification for appeal under 28 U.S.C. § 1292(b).

This makes clear that a circuit court’s denial of a Rule 23(f) petition lacks preclusive effect. It also reminds us that Rule 23(f) does not preempt the general statutory authority for appealing interlocutory orders, which applies equally to class certification orders. (Conceivably, you could decide to bypass Rule 23(f) in the first instance and instead ask your district court to certify for appeal an adverse ruling on class certification. But, in this event, you will need to be assured of a speedy response from the district court because—as the Supreme Court recently held in Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019)—the 14-day deadline for seeking review under Rule 23(f) is not subject to equitable tolling; thus, if the district court takes its time and ultimately declines to certify its order for interlocutory appeal, it may be too late for you to fall back on Rule 23(f)).

For the bold, yet another option exists for calling the district court’s class certification order into question: a petition for writ of mandamus. But even the commentators who have recognized the availability of this mechanism suggest that its use is appropriately limited to “particularly unique or extraordinary decisions on class certification by trial judges.” See Michael E. Solimine & Christine Oliver Hines, “Deciding to Decide: Class Action Certification and Interlocutory Review by the United States Courts of Appeals Under Rule 23(f),” 41 Wm. & Mary L. Rev. 1531, 1583 (2000). Of course, if you are on the losing end of such a decision, it is difficult to envision why a Rule 23(f) petition would not suffice, given that you would doubtlessly have no shortage of persuasive arguments for the circuit court as to why it should allow an immediate appeal of the district court’s astonishing class certification order.

Last, there remains the question of whether a circuit court’s denial of a Rule 23(f) petition is subject to further review. It does not appear that the Supreme Court has ever granted a petition for a writ of certiorari to review any circuit court’s denial of a Rule 23(f) petition. But if you see a strategic advantage in asking for this review, are you likely to get it? Simply put, this is all but surely a bridge too far for the Supreme Court. In your petition, you will not be able to cite to any precedent that makes clear the Supreme Court has the authority to review the circuit court’s Rule 23(f) denial. But your opponent will have significant support for the contrary position. Glaringly absent from the Supreme Court’s list of suggestions in Microsoft Corp. v. Baker for the losing Rule 23(f) petitioner is any mention of a subsequent appeal. But in that same opinion, the Supreme Court pointed out that—per the notes of the Advisory Committee on Civil Rules to Rule 23(f)—the decision of whether to permit an interlocutory appeal from an adverse certification decision is committed to “the sole discretion of the court of appeals.”

And the logic of this scheme becomes apparent under scrutiny. Picture the routine scenario where the district court issues an order and opinion on class certification, and the circuit court denies the resulting Rule 23(f) petition without an opinion. If the Supreme Court were to grant certiorari to assess the circuit court’s discretionary rejection of the immediate reviewability of a class certification order, it would all but certainly have to weigh in on the substance of the district court’s class certification order without the circuit court having first done so, effectively setting up a direct interlocutory review of a district court order. It seems far more likely that the Supreme Court would hold off—especially in light of the other options yet available to the unsuccessful 23(f) petitioner that the Supreme Court has recently discussed.

While pursuing an adverse 23(f) ruling to the Supreme Court is not likely to bear fruit, the recipient of such a ruling has a number of other choices, several of which the Supreme Court has suggested. If your Rule 23(f) petition is denied, you must decide which, if any, to pursue—but there is no question that you have options.

Martin Woodward practices at the Stanley Law Group in Dallas, Texas.  


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