In re James

• Decision Date: 07 April 2006
• Docket Number: No. 05-5132.,05-5132.
• Citation: 444 F.3d 643
• Parties: In re: Sandra L. JAMES et al., Petitioners.
• Court: U.S. Court of Appeals — District of Columbia Circuit

444 F.3d 643

In re: Sandra L. JAMES et al., Petitioners.

No. 05-5132.

United States Court of Appeals, District of Columbia Circuit.

Argued February 9, 2006.

Decided April 7, 2006.

Appeal from the United States District Court for the District of Columbia (No. 03cv01835).

Joseph D. Gebhardt argued the cause for petitioners. With him on the briefs was Charles Williamson Day, Jr.

Peter D. Blumberg, Assistant U.S. Attorney, argued the cause for respondent. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: HENDERSON and TATEL, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

In this employment discrimination case against a federal agency, the district court denied class certification because, in its view, the employee plaintiffs failed to file their lawsuit within the time required by Title VII of the Civil Rights Act of 1964. Plaintiffs, petitioners herein, now seek to challenge the denial of class certification, invoking Rule 23(f) of the Federal Rules of Civil Procedure, which gives courts of appeals discretion to entertain an interlocutory appeal "from an order of a district court granting or denying class action certification." Fed.R.Civ.P. 23(f). In In re Lorazepam & Clorazepate Antitrust Litigation, 289 F.3d 98 (D.C.Cir.2002), this court limited Rule 23(f) interlocutory appeals to petitions that present issues relating to Rule 23's certification requirements. Given that the district court in this case denied class certification because it believed petitioners failed to comply with requirements imposed by Title VII, not Rule 23, we decline to hear this appeal.

I.

Title VII of the Civil Rights Act of 1964, as amended, prohibits "discrimination based on race, color, religion, sex, or national origin" in federal employment. 42 U.S.C. § 2000e-16(a). Under Title VII, employees who believe they have been discriminated against must first consult an Equal Employment Opportunity (EEO) Counselor within 45 days of the alleged discriminatory acts. 29 C.F.R. § 1614.105(a)(1). Should the employee and the Counselor fail to resolve the discrimination claim within 30 days, the Counselor sends the employee a notice explaining the administrative complaint procedure. Id. § 1614.105(d). The employee then has 15 days to file an individual and/or class complaint with the employing agency. Id. § 1614.106 (regulations governing individual complaints); id. § 1614.204 (regulations governing class complaints); see also id. § 1614.103 (noting types of complaints governed by agency processing procedures outlined in regulations). Upon receipt of a final agency decision — known as a "FAD" — disposing of the administrative complaints, the employee has either 30 days to appeal to the Equal Employment Opportunity Commission (EEOC), id. §§ 1614.401(a), 1614.402(a), or 90 days to file suit in federal court, 42 U.S.C. § 2000e-16(c).

Unable to resolve their claims with agency EEO Counselors, petitioners filed individual administrative complaints alleging that their employer, the Naval Sea Systems Command ("NAVSEA"), discriminated against them on the basis of, among other things, sex and/or race. Later, they filed a class complaint together with a motion to certify the matter as a class action. As required by applicable regulations, NAVSEA forwarded the class complaint to the EEOC. See 29 C.F.R. § 1614.204(d). Nearly two years later, an EEOC Administrative Law Judge dismissed the class complaint for lack of jurisdiction. On March 21, 2003, NAVSEA sent the class agents (i.e., class members acting on behalf of the class, see 29 C.F.R. § 1614.204(a)(3)), including several petitioners, a letter notifying them that it had adopted the ALJ's decision to dismiss the class complaint but that it would process the claims as individual complaints. Styled a "Final Order," the March 21 letter also notified the class agents of their right either to appeal to the EEOC or to file suit in federal district court. None of the class agents pursued either course of action. On May 29, two months after class agent petitioners received the March 21 letter, each petitioner received a letter dismissing their individual complaints.

Although petitioners failed to sue within 90 days of the March 21 letter dismissing their class complaint, they did file suit within 90 days of the May 29 FADs dismissing their individual complaints. Shortly thereafter, they filed a motion under Rule 23 of the Federal Rules of Civil Procedure to certify the case as a class action. In response, NAVSEA filed a Rule 12(b)(6) motion to dismiss, arguing that petitioners' claims were untimely — the individual claims because petitioners had failed to contact a Counselor within 45 days of the alleged discriminatory acts, and the class claims because petitioners had failed to file suit within 90 days of the March 21 dismissal of the class complaint. The district court, finding that petitioners had in fact contacted an EEO Counselor within 45 days, denied NAVSEA's motion to dismiss the individual claims. James v. England, 332 F.Supp.2d 239, 246 (D.D.C. 2004). Agreeing with the agency's second point, however, the district court granted the motion to dismiss the class claims because petitioners had failed to file suit within 90 days of receiving the March 21 letter dismissing the class complaint. Id. at 250. Then, explaining that it had no "jurisdiction to entertain the class complaint," the district court found itself "compelled to deny the plaintiffs' [Rule 23] motion for class certification." Id. at 250 n. 5.

Petitioners moved for reconsideration, arguing first that the district court "erred in treating the plaintiffs' motion for class certification as a challenge" to the EEOC's March 21 letter dismissing their class complaint, "rather than as a request to certify the plaintiffs as a class pursuant to [Rule 23]," and "[s]econd, that they should be excused for any untimely filings. . . on equitable tolling grounds." James v. England, 226 F.R.D. 2, 3 (D.D.C.2004). The district court denied the motion, finding that petitioners failed to meet the "prerequisites to a federal action" when they neglected to "act[] upon the EEOC's statutory notice of the right to sue" on their class complaint. Id. at 5 (emphasis, internal quotation marks, and citation omitted). Allowing petitioners to proceed "as a class based upon their individual claims would," the district court explained, "permit them to circumvent the clear legal structure for pursuing class claims under Title VII." Id. at 6. Because none of the plaintiffs had timely filed a properly exhausted administrative class claim, the district court found itself without "any administratively exhausted class claims, which . . . would permit it to entertain a motion for class certification." Id. The district court also denied petitioners' request for equitable tolling. According to the district court, petitioners waived their "[a]dmittedly . . . compelling" equitable tolling argument by failing to raise it in their pleadings. Id. at 6-7.

Pursuant to Rule 23(f), plaintiffs filed a timely petition for interlocutory appeal of the district court's order denying class certification. Rule 23(f) gives federal courts of appeals "discretion [to] permit an appeal from an order of a district court granting or denying class action certification." Fed. R.Civ.P. 23(f).

II.

In re Lorazepam & Clorazepate Antitrust Litigation ("Lorazepam") articulates the circumstances under which this circuit will exercise its discretion to entertain Rule 23(f) interlocutory appeals. Sharing the advisory committee's "reluctance to depart from the traditional procedure in which claimed errors by the district court are reviewed on appeal only upon the conclusion of the proceedings in the district court," Lorazepam, 289 F.3d at 104-05, Lorazepam makes clear that this court will exercise its discretion to hear Rule 23(f) interlocutory appeals only where the petition presents issues arising under Rule 23, e.g., numerosity, commonality, typicality, and adequacy of representation, id. at 106; see also Fed.R.Civ. P.23(f) advisory committee's note (1998) (recognizing appellate court's broad discretion, but noting that "many suits with class-action allegations present familiar and almost routine issues that are no more worthy of immediate appeal than many other interlocutory rulings" and advising "courts of appeals [to] develop standards for granting review"). Even if the issues raised relate to class certification, Lorazepam also requires that they fit into one of three categories considered "typically" appropriate for "interlocutory appeal pursuant to Rule 23(f)":

(1) when there is a death-knell situation for either the plaintiff or defendant that is independent of the merits of the underlying claims, coupled with a class certification decision by the district court that is questionable, taking into account the district court's discretion over class certification; (2) when the certification decision presents an unsettled and fundamental issue of law relating to class actions, important both to the specific litigation and generally, that is likely to evade end-of-the-case review; and (3) when the district court's class certification decision is manifestly erroneous.

289 F.3d at 99-100. Although noting that these categories are not "rigid," Lorazepam nonetheless concludes that, "absent special circumstances, this court's consideration of petitions for interlocutory review under Rule 23(f) should ordinarily fall within the[se] three circumstances." Id. at 105-06.

Invoking Lorazepam's third category, petitioners argue that the district court's denial of class certification was "manifestly erroneous" in two respects. First, they insist that because they administratively exhausted their class claims, and because they timely filed their administrative...