Nucor Corporation v. Quinton Brown ( 2014 )


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  •                                                          FILED:   July 25, 2014
    PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-154
    (2:04-cv-22005-CWH)
    NUCOR CORPORATION; NUCOR STEEL-BERKELEY,
    Petitioners,
    v.
    QUINTON BROWN; JASON GUY; RAMON ROANE; ALVIN SIMMONS;
    SHELDON    SINGLETARY; GERALD WHITE;  JACOB  RAVENELL,
    individually and on behalf of the class they seek to
    represent,
    Respondents.
    O R D E R
    GREGORY, Circuit Judge:
    In    this       class     action        litigation,    Defendants     Nucor
    Corporation     and   Nucor     Steel       Berkeley   (collectively,   “Nucor”)
    sought    decertification        of     a     class    alleging   hostile   work
    environment claims.           The district court denied Nucor’s motion,
    and Nucor now petitions for interlocutory review of the refusal
    to decertify.     We deny the petition as untimely.
    I.
    This litigation concerns substantive allegations of racial
    discrimination, see Brown v. Nucor Corp., 
    576 F.3d 149
     (4th Cir.
    2009), however, only the procedural history is relevant to this
    order.     The    district        court    initially      denied    the   plaintiffs’
    motion for class certification, and we vacated and remanded for
    certification.      
    Id. at 160
    .           In 2011, the district court issued
    an order (the “certification 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     Nucor         subsequently       filed        four   motions     for
    decertification.         After denying the first motion, the district
    court granted in part the second motion for decertification (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,      Nucor    sought
    decertification of the hostile work environment class in light
    of    Comcast    Corp.   v.      Behrend,    
    133 S. Ct. 1426
       (2013).      The
    district   court    denied        this    motion.        Nucor    now   embarks    on   a
    2
    second attempt to file an interlocutory appeal challenging the
    refusal to decertify the hostile work environment class. 1
    II.
    Federal Rule of Civil Procedure 23(f) permits review of
    decisions granting or denying class certification.                Scott v.
    Family Dollar Stores, Inc., 
    733 F.3d 105
    , 111 (4th Cir. 2013).
    An   appeal   from   a   certification   order   must   be    filed   within
    fourteen days of the order.       Pashby v. Delia, 
    709 F.3d 307
    , 318
    (4th Cir. 2013).         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.    Blair v. Equifax Check Servs., Inc., 
    181 F.3d 832
    , 837
    (7th Cir. 1999); see also In re DC Water & Sewer Auth., 
    561 F.3d 494
    , 495-96 (D.C. Cir. 2009).       The “rigid and inflexible” nature
    of this deadline is “well-established.”           Fleischman v. Albany
    Med. Ctr., 
    639 F.3d 28
    , 31 (2d Cir. 2011).                   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 Rule 23(f).             Gary
    v. Sheahan, 
    188 F.3d 891
    , 892 (7th Cir. 1999).
    1
    Nucor petitioned for interlocutory review of the 2012
    Order, challenging the district court’s refusal to decertify the
    hostile work environment class. We denied the petition.
    3
    Furthermore, 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.        See In re DC Water & Sewer Auth., 561 F.3d at 496
    (joining the Third, Fifth, Seventh, Tenth, and Eleventh Circuits
    in adopting this rule).              This is because “[a]n 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.’”           Carpenter v. Boeing Co., 
    456 F.3d 1183
    , 1191
    (10th Cir. 2006).           These subsequent motions are just attempts to
    amend the original certification order, and attempts to appeal
    them are untimely if filed more than fourteen days after the
    order granting or denying certification.                       Fleischman, 
    639 F.3d at 31-32
    .
    In    light    of    these    parameters,     we    find    Nucor’s   instant
    petition untimely.            The fourth motion for decertification, filed
    two    years    after      the     certification    order,      represents   Nucor’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.                    Carpenter, 
    456 F.3d at 1191
    .       We will not render the Rule 23(f) deadline “toothless” by
    permitting Nucor to “easily circumvent Rule 23(f)’s deadline by
    4
    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.      Fleischman,       
    639 F.3d at 31
    (quoting In re DC Water & Sewer Auth., 561 F.3d at 496-97). 2                         The
    latest    Nucor   could      have    appealed      the    certification         of    the
    hostile    work   environment       class    was    fourteen      days    after       the
    district court denied the motion to reconsider the certification
    order.    That date passed more than three years ago.
    Entered       at   the    direction      of     Judge    Gregory       with       the
    concurrences of Judge King and Judge Agee.
    PETITION DENIED
    For the Court
    /s/ Patricia S. Connor, Clerk
    2
    In arguing that the petition is timely, Nucor cites to
    non-binding precedent that permitted what would have been an
    otherwise untimely petition.      McReynolds v. Merrill Lynch,
    Pierce, Fenner & Smith, Inc., 
    672 F.3d 482
     (7th Cir. 2012). The
    Seventh Circuit created the exception because it found Wal-Mart
    to be a “milestone” decision that significantly altered class
    action jurisprudence and clearly required reversal of the
    challenged order.   Id. at 485-87.    We are not persuaded that
    Comcast rises to this level demanding exceptional treatment in
    this case.
    5