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Class Action Defense Cases–In re DC Water & Sewer: District Of Columbia Circuit Denies Permission To Appeal Class Action Certification Order As “Blatantly Untimely” And Criticizes Defendant And Defense Counsel For Filing Petition

Petition under Rule 23(f) for Permission to Appeal Class Action Certification Order Untimely and that Defendant and its Counsel “Would File – and Attempt to Justify – such a Blatantly Untimely Petition” is “Troubling” District of Columbia Circuit Holds

Plaintiff filed a class action against DC Water and Sewer Authority (WA SA) alleging violations of the Civil Rights Act of 1964; the class action complaint asserted that WASA engaged in acts of discrimination in the hiring and promotion of employees. In re DC Water & Sewer Auth., 561 F.3d 494, 495 (D.C. Cir. April 3, 2009). The district court granted plaintiff’s motion to certify the litigation as a class action under Rule 23(b)(2), id. The class action was on behalf of “Black employees at WASA who sought and were denied positions, career ladder promotions, or other advancement, or whose advancement was delayed, or whose compensation was otherwise affected by WASA’s alleged unlawful discrimination, from October 1996 through December 2000.” Id. The district court granted plaintiff’s motion to certify the litigation as a class action, and on March 27, 2007 WASA filed a motion for reconsideration of the class action certification order. Id. and n.1. The district court denied WASA’s motion for reconsideration on September 13, 2007, id., at n.1. On April 9, 2008, WASA asked the district court to “clarify” its certification order; on July 24, 2008, the district court “summarily denied” WASA’s motion. Id., at 495. Finally, on August 7, 2008, WASA petitioned the Circuit Court of Appeals for the District of Columbia “pursuant to Federal Rule of Civil Procedure 23(f) for permission to appeal the district court’s order certifying a class of WASA employees in an employment discrimination class action.” Id., at 494-95. The Circuit Court denied the petition was untimely.

By way of background, Rule 23(f) provides in part: “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 10 days after the order is entered.” Fed.R.Civ.P. 23(f) (italics added). Various circuit courts have held that the 10-day period for seeking permission to appeal must be strictly construed, though some circuits have held that the 10-day period “resets” once a district court rules on a motion for reconsideration. In re DC Water, at 495-96 (citations omitted). Here, defense attorneys filed their petition almost 17 months after the district court entered its class certification order, and almost a year after the district court summarily denied WASA’s motion for reconsideration: “By any measure, then, the petition was far out of time.” Id., at 496. The Circuit Court easily dismissed WASA’s claim that the April 2008 “motion for clarification” somehow restarted the 10-day deadline in Rule 23(f), finding that defendant’s argument “runs counter to the plain language of Rule 23(f).” Id. Put simply, the district court order denying WASA’s motion for clarification was not “an order granting or denying class-action certification” as required by Rule 23(f), and to hold otherwise would allow any party “to restart [the 10-day clock] at any time simply by filing a pleading styled as a ‘motion to clarify.’” Id., at 496-97 (citations and footnotes omitted). The Circuit Court concluded at page 497, “In its dogged pursuit of an interlocutory appeal – based on the most tenuous (if not untenable) grounds – WASA has both disrupted the class action proceeding in the district court and wasted the resources of the parties and the court. We find it troubling that WASA and its lawyers would file – and attempt to justify – such a blatantly untimely petition.” (Citations omitted.) Accordingly, the Court denied defendant’s petition for permission to appeal the class certification order, id.

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