Nucor Corporation v. Quinton Brown

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

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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

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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.

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