Rule 23(f) provides for discretionary interlocutory review of an order “granting or denying class-action certification” if a party files a petition for permission to appeal within 14 days after the order is entered. Last month, the Fourth Circuit rejected an attempt to extend that deadline to appeals from the denials of decertification motions.
In Nucor Corp. v. Brown, the district court originally certified two classes. Over the next two years, the defendants filed a series of four decertification motions, finding partial success on the second motion, which decertified one of the two classes; the first, third, and fourth motions were denied. After the denial of their fourth decertification motion, the defendants sought interlocutory review of the denial under Rule 23(f).
The Fourth Circuit, persuaded by the prior like decisions of the Third, Fifth, Seventh, Tenth, Eleventh and D.C. circuits, held that the denial of the decertification motion was not appealable under Rule 23(f). The order did not grant or deny class-action certification; it merely refused to disturb the two-year-old original order granting class certification. In fairly strong words, the court remarked: “We will not render the Rule 23(f) deadline ‘toothless’ by permitting Nucor to ‘easily circumvent Rule 23(f)’s deadline by filing a motion to amend or decertify the class at any time after the district court’s original order’ . . . .”
The takeaway: in the Fourth Circuit (and probably every other circuit), the 14-day period runs from the original certification order. A subsequent order on class certification will be appealable only if it alters the class action status in some way (thus, the plaintiff presumably could have appealed the court’s partial grant of the defendants’ second decertification motion within 14 days). Mere denial of a motion to reconsider the original ruling, or otherwise decertify the class, is not appealable under Rule 23(f).