David M. ARMSTRONG, L. Benson Barger, Wallace D. Black,
Howard Brooks, Jerry A. Budd, Sonja M. Carter, Dominick C.
Cizek, Carol D. Clarke-Iley, Charles H. Davis, Kenneth O.
Giessuebel, Herold P. Glaser, Robert A. Havlish, Kumar
Hinduja, Joseph C. Jett, Glenn E. Johnson, Robert C. Lerche,
Calvin N. Lightner, George W. McGuirk, James W. McLean,
William G. Murphy, Donald L. Prasky, Clark C. Rains, Kenneth
A. Richards, Russell G. Roberts, Linda L. Ryan, Victor W.
Shaw, Linton W. Smith, Michael Sylvestri, Delbert S. Turner,
Edward W. Walsh, Joseph W. Williamson, Plaintiffs-Appellants,
v.
MARTIN MARIETTA CORP., Martin Marietta Technologies, Inc.,
Defendants-Appellees.
No. 95-3255.
United States Court of Appeals,
Eleventh Circuit.
April 16, 1998.
Norman B. Smith, Smith, Follin & James, L.L.P., Greensboro, NC, Allen M. Blake, St. Petersburg, FL, for Plaintiffs-Appellants.
Abigail van Alstyne, Gordon, Solberman, Wiggins & Childs, Birmingham, AL, for Amicus Lawyers' Committee for Civil Rights Undr Law.
Thomas C. Garwood, Jr., Kay L. Wolf, Garwood,, McKenna & McKenna, P.A., Orlando, FL, for Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges.*
TJOFLAT, Circuit Judge:
In Crown, Cork & Seal Co., Inc. v. Parker,
I.
This case arises under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1994) (the "ADEA"). The thirty-one appellants in the instant case are former Martin Marietta4 employees who lost their jobs between 1992 and 1993. (Two other appellants, Myrtle Y. Redding and Marlon K. Tarter, have been dismissed from this appeal pursuant to joint stipulation of the parties.) Following their terminations, twenty-eight appellants filed timely charges of age discrimination with the Equal Employment Opportunity Commission (the "EEOC"), as is required by statute. See 29 U.S.C. § 626(d) (providing that a person who wishes to bring a civil action against his or her employer pursuant to the ADEA must first file a timely charge of discrimination with the EEOC). Three appellants--Clarke-Iley, Johnson, and Shaw--did not file EEOC charges.
At various times, the EEOC notified each appellant (other than Clarke-Iley, Johnson, and Shaw) that his or her charge of age discrimination was dismissed. Receipt of such notice triggers the statute of limitations for bringing a civil action in court, and the plaintiff must then file suit within ninety days. See 29 U.S.C. § 626(e).5 This ninety-day limitations period is tolled, however, while the plaintiff is a putative member of a class action. See Crown, Cork,
On April 7, 1994, the district court in Carmichael determined that the appellants were not "similarly situated" to the other Carmichael plaintiffs. The Carmichael court therefore certified a plaintiff class that did not include as members the appellants in the instant case. The court then dismissed the claims of appellants Davis, Havlish, and Hinduja without prejudice, and denied the remaining appellants' requests to opt into the Carmichael class. None of the appellants requested leave to file an interlocutory appeal from that order under 28 U.S.C. § 1292(b).7
On October 11, 1994, more than ninety days after the Carmichael court's partial denial of class certification, the thirty-one appellants and fourteen additional plaintiffs (including former appellants Redding and Tarter) filed the complaint that commenced the instant action in the district court. On October 25, 1994, an amended complaint added a forty-sixth plaintiff, appellant Wallace Black.
On January 17, 1995, Martin Marietta filed a motion for partial summary judgment against the thirty-one appellants, on the ground that they had failed to file their individual lawsuits within ninety days after their dismissal from the Carmichael class action. Martin Marietta also sought summary judgment against appellants Clarke-Iley, Johnson, and Shaw on the alternative ground that each had failed to file a charge of age discrimination with the EEOC within 300 days of the alleged discrimination.
On March 22, 1995, a magistrate judge issued a report recommending that the district court grant Martin Marietta's motion for partial summary judgment. The magistrate judge concluded that the ninety-day statute of limitations, which was tolled while the appellants were putative members of the Carmichael class action, recommenced when the Carmichael court dismissed their claims. Therefore, because the appellants' instant claims were filed more than ninety days after the dismissal in Carmichael, those claims were barred by the statute of limitations. The magistrate judge rejected Martin Marietta's alternative ground for partial summary judgment against Clarke-Iley, Johnson, and Shaw, concluding that this circuit's "piggybacking" rule excused them from filing charges of discrimination with the EEOC. See Grayson v. K Mart Corp.,
On May 10, 1995, the district court adopted the magistrate judge's report and recommendation, and granted partial summary judgment against the thirty-one appellants. On September 14, 1995, the district court amended its order and replaced the partial summary judgement with a final judgment pursuant to Federal Rule of Civil Procedure 54(b). This appeal followed.
II.
The primary issue on appeal is whether the district court was correct in holding that the statute of limitations, which was tolled while the appellants were putative members of the class action, resumed running when the Carmichael court dismissed the appellants' claims in that case. We hold that the limitations period for filing an individual suit (and for intervening in an extant action) did so resume. We therefore affirm the decision of the district court with regard to almost all of the appellants.9
The ADEA's statute of limitations requires the plaintiff to file suit within ninety days after receiving notice that the EEOC has dismissed the plaintiff's age discrimination charge. See 29 U.S.C. § 626(e). Membership in a pending class action, however, tolls the ninety-day period for filing an individual lawsuit. See Crown, Cork,
The appellants, however, argue that the statute of limitations should continue to be tolled, even after the district court's denial of class certification, because the denial of certification in an interlocutory order may be reversed by the district court at any time before final judgment, or by the court of appeals after final judgment or, in rare cases, on interlocutory review. We disagree. No reasonable person would rely on the hope that either the district court or this court might someday determine that the suit should have proceeded as a class action.
When the district court denies class certification,10 the named plaintiffs no longer have a duty to advance the interests of the excluded putative class members. See Fed.R.Civ.P. 23(c)(1), advisory committee's note to 1966 amendment (explaining that the trial court's order denying class certification "strip[s] [the suit] of its character as a class action," thus requiring the litigation to proceed as a non-class action, even though the district court may change its mind and certify a class at any time before a decision on the merits); Pearson v. Ecological Science Corp.,
Caselaw from the Supreme Court and several federal appellate courts also indicates that the tolling period should cease upon denial of class certification. The plain language of Crown, Cork itself clearly implies that tolling is to end upon the district court's denial of class certification. The Crown, Cork Court wrote: "Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action." Crown, Cork,
American Pipe & Construction Co. v. Utah,
that the commencement of the class action in this case suspended the running of the limitation period only during the pendency of the motion to strip the suit of its class action character. The class suit . . . was filed with 11 days yet to run in the [limitations] period . . . and the intervenors thus had 11 days after the entry of the order denying them participation in the suit as class members in which to move for permission to intervene. Since their motions were filed only eight days after the entry of [the] order, it follows that the motions were timely.
Id. at 561,
The Supreme Court's decision in United Airlines, Inc. v. McDonald,
This [statute of limitations] argument might be persuasive if the respondent had sought to intervene in order to join the named plaintiffs in litigating her individual claim . . . for she then would have occupied the same position as the intervenors in American Pipe. But the later motion to intervene in this case was for a wholly different purpose. That purpose was to obtain appellate review of the District Court's order denying class action status . . . and the motion complied with, as it was required to, the [thirty-day] time limitation for lodging an appeal. . . . Success in that review would result in the certification of a class, the named members of which had complied with the statute of limitations; the respondent is a member of that class against whom the statute had not run at the time the class action was commenced.
Id. at 392,
Finally, as the dissent concedes, language in Chardon v. Soto,
federal interest in assuring the efficiency and economy of the class action procedure . . . is vindicated as long as each unnamed plaintiff is given as much time to intervene or file a separate action as he would have under a state savings statute applicable to a party whose action has been dismissed for reasons unrelated to the merits, or, in the absence of a statute, the time provided under the most closely analogous state tolling statute.
Id. at 661,
The instant case presents no concerns of federalism, but the Court's holding in Chardon is still instructive. Chardon held that the federal interest in the efficiency of federal class action procedure was satisfied by the application of state statutes of limitations only "after class certification is denied " (and the facts of the case make it clear that the Court was referring to the district court's denial of certification). Id. (emphasis added). We therefore read Chardon to draw a distinction between 1) the federal interest in encouraging reliance upon the class action mechanism prior to denial of certification in the district court, and 2) the federal interest in doing so after denial of certification in the district court. The federal interest in encouraging reliance upon the class action mechanism prior to denial of certification is strong, because reliance on the mechanism is reasonable and saves many individual suits and motions for intervention from being filed; for this reason, as the Chardon Court noted, American Pipe established tolling of limitations during the pendency of a class action. See id. at 658-60,
In addition to this guidance from the Supreme Court, several appellate courts have explicitly rejected the argument that the statute of limitations for filing an individual claim should remain tolled through an appeal of the denial of class certification. See Nelson v. County of Allegheny,
Practical considerations also lead us to conclude that, if class certification is denied in whole or in part, the statute of limitations begins to run again as to excluded putative class members as of the date of the district court's order denying certification.
The district court's class certification decision, which defines which claimants are class members and which are not, is not a "final decision" within the meaning of 28 U.S.C. § 1291, because an excluded putative class member is free to proceed with his individual claim. Class certification decisions are therefore not appealable as a matter of right. See Coopers & Lybrand v. Livesay,
A.
Let us consider the possibility of mandamus review first. In In re Estelle,
We have in the past issued mandamus to direct a district court to decertify an improperly certified class, when the certification of that class was a clear abuse of discretion. See, e.g., Temple,
B.
Let us next consider the possibility of appellate review of a denial of class certification pursuant to 28 U.S.C. § 1292(b). Section 1292(b) authorizes the courts of appeals to exercise interlocutory review of district court orders only when the lower court certifies for review a question of law, and not when the lower court attempts to certify only discretionary matters, such as the decision to certify a class vel non.26 See 28 U.S.C. § 1292(b) (1994) (stating that a district court may certify for interlocutory appeal "a controlling question of law as to which there is substantial ground for difference of opinion") (emphasis added); Link v. Mercedes Benz of N. Am.,
Moreover, the availability of review under section 1292(b) is subject to both the district court's willingness to certify the matter for review and this court's willingness to hear the appeal. See 28 U.S.C. § 1292(b) (1994) (stating that, after certification of interlocutory appeal by district court order, "[t]he Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order"); see also Mason v. Stallings,
Let us finally consider the third possible jurisdictional basis for appellate review of a denial of class certification--review after a final judgment in the case below. A denial of class certification is "a procedural ruling, collateral to the merits of a litigation, that is appealable after the entry of final judgment" pursuant to our jurisdiction under 28 U.S.C. § 1291. Deposit Guar. Nat'l Bank v. Roper,
Review pursuant to section 1291, after entry of a final judgment, is by far the most common basis for appellate review of class certification decisions. See Willging et al., 71 N.Y.U. L.Rev. at 170 (noting that the overwhelming majority of appeals in cases studied were from a final judgment or order). In this context, the dissent's preferred rule admittedly might lead a few disappointed putative class members to refrain from filing individual lawsuits prior to an eventual reversal of the district court's denial of class certification. The dissent's rule might thereby avoid some duplicitous, unnecessarily costly litigation in the few cases where we find the district court to have abused its discretion. But this small measure of added efficiency would come at too high a cost.
First, continuing to toll the statute of limitations through trial and through the entire appeals process would seriously contravene the policies underlying statutes of limitations. Statutes of limitations are intended to prevent "the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Order of R.R. Telegraphers v. Railway Express Agency,
Moreover, the extended tolling period may be expected to prejudice many defendants because plaintiffs will be able to choose when to file their suits.34 As the Court noted in American Pipe, class action procedure prior to the 1966 revision of Rule 23 was criticized for allowing putative class members in some situations to wait until final judgment on the merits of an action before determining whether participation in the action was in their best interests. American Pipe,
The threat of such delay and such prejudice would cause many defendants not to contest motions for class certification. The costs to a defendant of this unlimited extension of the tolling period--not knowing when its exposure to claims of putative class members will end--may be such that the defendant forgoes a meritorious defense to certification and instead agrees to litigate all the putative class claims in the instant case. Thus, the dissent's rule would impose an unnecessary--and perhaps an intolerable--tax on the judiciary, as courts are forced to preside over large class actions as to which a meritorious defense exists but has not been proffered.
Although appeals from denials of class certification can take years, the certification decision itself should come early in the litigation. Rule 23 counsels early determination of motions for class certification. See Fed.R.Civ.P. 23(c)(1) ("As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained."). In fact, motions to certify are filed, on average, within three to four months after the filing of an action, and the motions are ruled upon, on average, within three to eight months. See Willging et al., 71 N.Y.U. L.Rev. at 101-02. See also 28 U.S.C. § 476 (1994) (requiring motions pending for more than six months to be included in semi-annual report under Civil Justice Reform Act). If the district court acts seasonably in deciding the certification issue, the extension of the limitations period under the Crown, Cork rule should not be great. See American Pipe,
D.
As the preceding discussion indicates, interlocutory appeals of denials of class certification are relatively uncommon and are very rarely successful. Therefore, reliance on the possibility of reversal upon an interlocutory appeal is unreasonable.35 This proposition is as true for the dissent as it is for disappointed putative class members; since interlocutory appeals are uncommon and rarely successful, the dissent's preferred rule would often toll the statute of limitations through a final judgment as well as through multi-issue appeals--a process that can take years--on the off chance that a few filings will be saved by the slim prospect of a successful appeal.36 This is fundamentally different from Crown, Cork tolling of the limitations period during the pendency of the motion for certification in the district court. Crown, Cork tolling is short and saves numerous filings by encouraging reasonable reliance on the pending class action. Tolling under the dissent's proposed rule would be long and would save few filings by encouraging unreasonable reliance on the slim possibility of reversal after a long appeal. This is simply too high a cost for too little benefit.
Moreover, the dissent's analysis fails to delineate how its rule would operate when, as happens in perhaps the greatest number of class actions, the named plaintiffs (along with, perhaps, members of a partially-certified class) settle their claims after denial of certification. When, under the dissent's rule, does the statute of limitations resume running? When the stipulation of dismissal or the final judgment is entered? After appeal by the named plaintiffs (who now have little incentive to pursue years of appeals)? And what if disappointed putative class members seek to intervene, as in United Airlines, for the purpose of appeal? Should they be given the benefit of years of continued tolling, despite the fact that their chances for success on appeal are terribly slim? This is not idle nit-picking. The earlier the event that triggers the resumption of the limitations period--say, the joint stipulation of dismissal--the greater the potential for prejudicial surprise of excluded putative class members.37 The later that event--say, the final failure of an appeal by intervening putative class members--the greater the potential that cases will grow stale. The dissent anticipates that we might work these sorts of problems out in due course. We prefer to avoid these problems altogether, with a clear rule that operates early in the litigation and that settles the tolling question with regard to all parties at once.38
We therefore conclude that the pendency of a class action tolls the applicable statute of limitations only until the district court makes a class certification decision. If class certification is denied in whole or in part, the statute of limitations begins to run again as to those putative class members who were excluded from the class. In order to protect their rights, such individuals must seek to intervene in the pending action (like the plaintiffs in American Pipe ), or file a separate individual action (like the plaintiff in Crown, Cork ) before the time remaining in the limitations period expires. If the dismissed class member takes no such action within the remainder of the limitations period, then he may neither file a suit in his own name nor intervene in the already-pending action. In such a situation, the dismissed class member's only avenue of relief is to wait until the pending action reaches final judgment, and then, like the plaintiff in United Airlines, file a timely motion to intervene for the limited purpose of appealing the district court's class certification decision.
The appellants argue that the rule we adopt will force disappointed putative class members to choose between 1) filing an individual lawsuit within the statute of limitations period or 2) exercising their right to appeal the denial of class certification. This does not have to be the case. A putative class member who wishes to preserve both rights should file her individual suit and immediately seek a stay of the individual suit pending the outcome of an appeal from the denial of class certification.39 If, in the judgment of the district (or state) court to whom the application for a stay has been made, the plaintiff's hopes for reversal of the initial denial of class certification are strong, and if the delay caused by the stay will not be too great, the court may, in its discretion, grant the stay; if the court believes that the chances of reversal are slim or the delay caused by waiting for the appellate process to conclude will be too long (as will usually be the case), the stay will properly be denied, and the plaintiff will properly have to proceed individually. This is a just, efficient result.
IV.
In light of our conclusion that the limitations period recommenced when the district court dismissed appellants from the Carmichael class action, we now address whether any of the appellants complied with the applicable statute of limitations.40
Civil actions under the ADEA must be filed within ninety days after the plaintiff receives notice of the EEOC's dismissal of the age discrimination charge. See 29 U.S.C. § 626(e) (1994). Three appellants (Davis, Havlish, and Hinduja) were named plaintiffs in Carmichael prior to their dismissal on April 7, 1994. Hinduja's employment at Martin Marietta was terminated on April 24, 1992; Davis' employment was terminated on May 8, 1992; and Havlish's employment was terminated Jan. 1, 1993. The inadequate record on appeal does not disclose when the Carmichael action was filed, or when these three appellants might have intervened therein. These three appellants' claims are certainly barred, however, even if we assume that Davis, Havlish, and Hinduja filed motions to intervene in the Carmichael action immediately upon receipt of their right-to-sue letters from the EEOC. If these three appellants had filed immediately, they would have retained ninety days from the Carmichael court's April 7, 1994, dismissal order in which to bring suit. The instant lawsuit was not filed until October 11, 1994, which is well beyond the end of the ninety-day limitations period. Havlish's, Hinduja's, and Davis' claims are therefore barred.
Twenty-two appellants (Armstrong, Barger, Brooks, Budd, Carter, Cizek, Giessuebel, Glaser, Jett, Lerche,41 Lightner, McGuirk, Murphy, Prasky, Rains, Richards, Ryan, Smith, Sylvestri, Turner, Walsh, and Williamson) received EEOC right-to-sue letters while they were still putative class members in the Carmichael action (i.e., they received their notices after they opted into the Carmichael class action on June 4, 1993, but before the Carmichael court's April 7 partial denial of certification). These twenty-two appellants thus retained ninety days from the Carmichael court's April 7, 1994, dismissal order in which to bring suit. Two other appellants (Black and Roberts) received their EEOC notices before opting into the Carmichael class action; thus, they had less than ninety days from the Carmichael court's April 7, 1994, dismissal order in which to file suit. The instant lawsuit was not filed until October 11, 1994, which is well beyond the end of the limitations period with regard to all twenty-five appellants named above. Their claims are therefore barred.
The record indicates that the EEOC notified appellant McLean of the dismissal of his age discrimination charge on June 30, 1994--over two months after the Carmichael court's dismissal order. Accordingly, McLean had ninety days from the date on which he received the June 30, 1994, EEOC notice in which to file suit. Because the instant suit was filed on October 11, 1994, it is not timely as to appellant McLean.
Invoking the "piggybacking" rule, three appellants--Clarke-Iley, Johnson, and Shaw--never filed age discrimination charges with the EEOC.42 Clarke-Iley, Johnson, and Shaw had 300 days from the date of their termination by Martin Marietta to file a charge with the EEOC. See 29 U.S.C. § 626(d) (1994) (providing that, in an ADEA case arising in a state that has its own fair employment practice agency, as does Florida, EEOC claims must be filed within 300 days of the allegedly illegal employment action). Shaw's employment with Martin Marietta was terminated on Sept. 25, 1992; Johnson's was terminated on Oct. 2, 1992; and Clarke-Iley's was terminated on Oct. 9, 1992. All three then opted into the Carmichael action on June 4, 1993.43 The EEOC administrative charge-filing period was tolled as to Clarke-Iley, Johnson, and Shaw during the pendency of their participation in the Carmichael class action--that is, from the time the Carmichael action was filed until the district court, on April 7, 1994, certified a class that did not include the appellants. See Griffin,
Finally, the appellants also make an alternative argument that the statute of limitations should be "equitably tolled," because the EEOC told several of them (Armstrong, Cizek, Richards, and Walsh) that the statute of limitations gave them two or three years in which to file suit,46 and because the EEOC failed to notify a number of other appellants (Barger, Brooks, Budd, Carter, Giessuebel, Glaser, Havlish, Jett, McGuirk, Murphy, Prasky, Rains, Smith, Sylvestri, Turner, and Williamson) that any statute of limitations applied. This argument has merit with regard to the four appellants who were affirmatively misinformed by the EEOC regarding the statute of limitations. See Browning v. AT&T Paradyne,
We do not, however, accord equitable tolling to the appellants who complain that the EEOC's right-to-sue letters failed to notify them that the statute of limitations for bringing an individual claim would resume running as of the date of the letter. Appellants have cited Baldwin County Welcome Ctr. v. Brown,
Even if the above-cited cases do establish that proposition, they are readily distinguished from the instant case. In Baldwin and Gates (and in Browning, supra, which in dicta read Baldwin and Gates much like the appellants read it now), the right-to-sue letter (or an analog thereto) was received long prior to the initiation of any private litigation by the claimant. The EEOC's letters to appellants Barger, Brooks, Budd, Carter, Giessuebel, Glaser, Havlish, Jett, McGuirk, Murphy, Prasky, Rains, Smith, Sylvestri, Turner, and Williamson, in contrast, informed them that their EEOC complaints were being terminated because they were part of the ongoing Carmichael litigation. At the time that these appellants received notice that their EEOC complaints were being terminated, they were aware that they had claims against Martin Marietta under the law; they were represented by counsel; and they were in fact putative class members (and in Havlish's case, a named plaintiff), in an ongoing ADEA class action. Under these circumstances, these appellants were as well-prepared to ascertain the requirements of the statute of limitations as any claimant. Equitable tolling of the limitations period with regard to these appellants would "contravene[ ] the normal rule that ignorance of legal rights or failure to seek legal advice does not toll the statute," Kazanzas v. Walt Disney World Co.,
CONCLUSION
Because we hold that, in the absence of controlling authority to the contrary, statutes of limitations resume running immediately upon the district court's entry of an interlocutory order denying class certification, we AFFIRM the district court's grant of summary judgment against appellants Barger, Black, Brooks, Budd, Carter, Davis, Giessuebel, Glaser, Havlish, Hinduja, Jett, Lerche, Lightner, McGuirk, McLean, Murphy, Prasky, Rains, Roberts, Ryan, Smith, Sylvestri, Turner, and Williamson.
We also AFFIRM the district court's grant of summary judgment against appellants Clarke-Iley, Johnson, and Shaw, because their claims are barred by the administrative statute of limitations and by the requirement that a prospective plaintiff file a timely charge of discrimination with the EEOC prior to suit in federal court.
Finally, we hold that the ninety-day statute of limitations was equitably tolled with regard to appellants Armstrong, Cizek, Richards, and Walsh until they filed the instant action. We therefore REVERSE the district court's summary judgment against them and REMAND the case so that they may proceed.
SO ORDERED.
EDMONDSON, Circuit Judge, concurring, in which BIRCH and BARKETT, Circuit Judges, join:
I concur in the result and in all but Part III of the court's opinion.
The question before us is whether the ADEA's statute of limitations was no longer tolled once the district court denied class certification. I agree that, although the statute of limitations is tolled while a class action is pending, the statute is no longer tolled when class certification is denied by the district court. But we need not decide such issues as the limits of the appealability (or the likelihood of success on appeal) of a district court's denial of class certification. Therefore, while the court's discussion in Part III might be legally correct, I do not believe the discussion is necessary to decide this case. So, I do not concur in that part of today's court opinion.
HATCHETT, Chief Judge, dissenting in part, concurring in part:
I respectfully dissent in part, and concur in part. For the reasons expressed below, I would reverse the district court's ruling that 29 U.S.C. § 626(e) operates to bar the individual ADEA lawsuits of the appellants and remand for further proceedings.
I.
In Armstrong v. Martin Marietta Corp.,
The Judicial Conference of the United States, through its Committee on Rules of Practice and Procedure, has now effectively answered that question. An amendment to the Federal Rules of Civil Procedure that is currently pending details a clear procedure for avoiding an undesirable result like the one that the majority endorses today. See Proposed Fed.R.Civ.P. 23(f).47 The proposed amendment vests in the federal appellate courts the discretion to permit an appeal from an order of a district court granting or denying class action certification if an application is made within ten days after the entry of the district court's order. Under the proposed amendment, the court of appeals and the district court would each have the discretion to stay proceedings pending the appeal--an action that would also operate to continue the tolling of any applicable statute of limitations.48
Of course, the proposed amendment has not yet been adopted.49 But that does not mean that the courts currently lack the supervisory authority to extend the doctrine of tolling to fashion an interim rule, so long as that rule promotes the purposes of Federal Rule of Civil Procedure 23 and does not encourage dismissed class members to "sleep[ ] on their rights." Crown, Cork & Seal Co. v. Parker,
In Crown, Cork & Seal, the Supreme Court indicated that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action."
a class complaint notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. The defendant[s] will be aware of the need to preserve evidence and witnesses respecting the claims of all members of the class. Tolling the statute of limitations thus creates no potential for unfair surprise, regardless of the method class members choose to enforce their rights upon denial of class certification.
Crown, Cork & Seal makes it clear that the class action complaint itself eliminates the potential for unfair surprise to defendants--"regardless of the method class members choose to enforce their rights upon denial of class certification."
Consider, for instance, the generic case--not much unlike the case at bar--where a district court makes an arguably erroneous interlocutory decision denying or limiting class certification. The interlocutory decision leaves a large number of putative class members in limbo--unable to obtain an immediate appeal as of right; at least potentially out of the case; and possibly at risk of losing their claims altogether if individual lawsuits are not promptly filed. From a policy standpoint, it is far more preferable for the large number of putative class members to get a prompt appeal and possible reversal of the arguably erroneous class certification decision than it is for them to clog the legal system with a multitude of individual lawsuits filed solely to preserve claims that arguably could and should be dealt with collectively. Without tolling--at least while the putative class members seek permission to pursue an interlocutory or direct appeal--the preferable approach will often not be taken, as the putative class members will have to file individual lawsuits in order to avoid running afoul of the appropriate statute of limitations.
Unless or until Congress enacts Proposed Rule 23(f), I would grant to plaintiffs who have been dismissed from a class action two options to pursue. First, to avoid the potential problem of litigants "sleeping on their rights," I emphasize that dismissed plaintiffs should act promptly. If dismissed plaintiffs are convinced that the district court's order denying or limiting class certification is legally unassailable, they should promptly file individual actions (or move to intervene in the named plaintiff's case) within the number of days remaining under the applicable statute of limitations period. If, on the other hand, dismissed plaintiffs are convinced that the district court's class certification order is subject to reversal on appeal as an abuse of discretion, they should promptly move for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) or for a final judgment pursuant to Federal Rule of Civil Procedure 54(b) so that a direct appeal can be pursued pursuant to 28 U.S.C. § 1291. In my view, the statute of limitations does not run for the dismissed plaintiffs during the pendency of the motion for interlocutory appeal or final judgment as the dismissed plaintiffs can in no way be said to be "sleeping on their rights," and the motion serves the interests of justice in potentially preventing the filing of unnecessary lawsuits.
The district court should, in almost every instance, grant an interlocutory appeal or enter a final judgment pursuant to rule 54(b). If the requirements for certification of an appeal pursuant to section 1292(b) are not met, it will generally be the case that "no just reason for delay" exists to preclude the entry of final judgment as to the dismissed plaintiffs. See Fed.R.Civ.P. 54(b); Brandt v. Bassett (In re Southeast Banking Corp.),
To summarize, the procedure that I would implement would require plaintiffs who have been dismissed from a class action to act promptly to protect their rights to pursue their individual claims. They must file individual lawsuits or intervene in the existing lawsuit within the applicable statute of limitations, or make a prompt effort to obtain appellate review of the denial of class certification through the procedures authorized in 28 U.S.C. §§ 1291 or 1292(b). Failure to pursue prompt appellate review, under my approach, would result in a statute of limitations time bar for any individual claims the dismissed plaintiffs may have possessed. Unlike the majority's superficially pleasing bright line, the foregoing options justly provide adequate protection to dismissed class members, discourage the filing of needless lawsuits and provide clear markers for defendants regarding the scope and duration of their potential liability.
II.
Unlike the majority, I would not retroactively impose on any of the appellants the rule announced today, whether it be the majority's or my own. The question before the court is one of first impression in this circuit. See Satterwhite v. City of Greenville,
Given the ambiguous state of the law when the appellants in this case were dismissed from the Carmichael class action, they urge that the new rule should not be applied to them. The appellees, of course, urge that it should. Although recognizing that it is a close call, I would allow the appellants to continue pursuing their individual claims even though those claims would otherwise be barred under either the majority's rule or my proposed one.
As this court recently stated in McKinney v. Pate,
First, the decision must announce a new principle of law, either by overruling clear past precedent or by deciding an issue of first impression the resolution of which was not clearly foreshadowed. Second, the application of the old rule in the instant case must not contravene the purpose and operation of the provision being interpreted. And, third, application of the new rule in the instant case must be inequitable.
McKinney,
In the past, the court has concentrated on the potential inequity to the plaintiff in assessing the third factor, McKinney,
Although it is a closer question, I also find that the first Chevron Oil factor is satisfied, because the court resolves an issue of first impression the resolution of which was not clearly foreshadowed in light of the discordant case law cited above and our express reservation of this issue in Satterwhite. Finally, I find that the second Chevron Oil factor is satisfied in light of the fact that the appellants in this case did not sleep on their rights in the face of clear contrary binding precedent.
Accordingly, because I would reverse the judgment of the district court in its entirety and remand for further proceedings, I dissent from the majority's affirmance as to appellants Barger, Black, Brooks, Budd, Carter, Davis, Giessuebel, Glaser, Havlish, Hinduja, Jett, Lerche, Lightner, McGuirk, McLean, Murphy, Prasky, Rains, Roberts, Ryan, Smith, Sylvestri, Turner and Williamson, in addition to appellants Clarke-Iley, Johnson and Shaw. I specially concur in the majority's reversal as to appellants Armstrong, Cizek, Richards and Walsh.
Notes
Circuit Judges Frank M. Hull and Stanley Marcus became members of the court after this case was argued and taken under submission. They elected not to participate in this decision
The district court's denial of class certification is an interlocutory order, not reviewable as of right until after the entry of final judgment. See Coopers & Lybrand v. Livesay,
The scope of our holding today is limited. Chardon v. Soto,
The dissent apparently also would have us adopt a variation of that rule. The precise contours of both the panel's holding and of the dissent's preferred holding are unclear. As discussed infra part III, we prefer a clear rule that operates early in the litigation, and that settles the tolling question with regard to all parties, as opposed to a complex of vague rules under which the tolling period will be indeterminate and almost certainly very long
It is unclear from the record on appeal whether appellee Martin Marietta Corporation or appellee Martin Marietta Technologies, Inc. was the employer in this case, although Martin Marietta Corporation asserts that all the appellants were employees of the subsidiary Martin Marietta Technologies and not of the parent corporation. It is unnecessary for us to decide this issue, however. We therefore use the name "Martin Marietta" to refer to both appellees
Section 626(e) reads in pertinent part:
If a charge filed with the Commission under this chapter is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section . . . against the respondent named in the charge within 90 days after the date of the receipt of such notice.
29 U.S.C. § 626(e).
The ninety-day statute of limitations applies in the instant case because all of the adverse employment decisions at issue occurred after November 21, 1991, the effective date of the Civil Rights Act of 1991, Pub.L. No. 102-166, § 115, 105 Stat. 1071, 1079 (1991), which altered the statute of limitations applicable to ADEA cases. The previous statute of limitations for ADEA cases was two years from the date of the adverse employment decision, or three years from that date for willful violations. See 29 U.S.C. § 626(e)(1) (repealed 1991); 29 U.S.C. § 255. See also Grayson v. K Mart Corp.,
Class actions under the ADEA are authorized by 29 U.S.C. § 626(b), which expressly borrows the opt-in class action mechanism of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b) (1994). Section 216(b) provides for a class action where the complaining employees are "similarly situated." However, "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id. See also LaChapelle v. Owens-Illinois, Inc.,
The sparse record on appeal in the instant case does not satisfactorily establish the exact date or dates on which the appellants opted into the Carmichael class action. Construing the facts in the light most favorable to the appellants (the non-moving parties in Martin Marietta's motion for summary judgment), we assume arguendo that all appellants opted into the class on June 4, 1993--the date when the Carmichael class action complaint was filed. The record on appeal presents no conclusive evidence to the contrary.
The Carmichael action is still an active lawsuit as of the date of this opinion. No judgment was ever entered under Fed.R.Civ.P. 54(b) with regard to the dismissal of appellants Davis, Havlish, and Hinduja from the Carmichael action, and that dismissal remains non-final and non-appealable
Because we hold that the district court correctly granted summary judgment against appellants Clarke-Iley, Johnson, and Shaw, see infra part IV, we do not address Martin Marietta's argument that the district court misapplied the piggybacking rule
As explained in detail infra part IV, we reverse the district court's entry of summary judgment against appellants Armstrong, Cizek, Richards, and Walsh
In the instant case, the Carmichael court did not deny class certification altogether; rather, it certified a narrow class that did not include the appellants. This of course amounted to a denial of class certification as to the appellants. For simplicity's sake, we refer in the text to the more common situation, where a district court denies class certification altogether
In Bonner v. City of Prichard,
Reconsideration and reversal of a denial of class certification by the district court is also rare. A recent study conducted by the Federal Judicial Center found that, of the cases studied:
1) motions for reconsideration of a denial of class certification were filed in only 4% of cases in which certification was denied;
2) of those cases in which a motion for reconsideration was filed, the motion was denied in 72% of the cases; and
3) in the remaining 28% of the cases, the district either took some other action or, for various reasons, did not rule on the motion for reconsideration.
See Thomas E. Willging, et al., "An Empirical Analysis of Rule 23 to Address the Rulemaking Challenges," 71 N.Y.U. L.Rev. 74, 113-14 (1996). In sum, motions for reconsideration of a denial of class certification are granted in less than 3% of cases in which certification is denied.
As explained infra part III, review of class certification decisions usually follows a final judgment
Because we read Crown, Cork clearly to imply that the tolling of the statute of limitations should, in the absence of controlling authority to the contrary, end upon the district court's denial of class certification, we refer to that rule of decision, for brevity's sake, as the "Crown, Cork " rule
One reason why this issue was not addressed in American Pipe, we imagine, was because, in that case, the Clayton Act provided not only a controlling statute of limitations but also an instruction regarding tolling--specifically, that tolling would be "suspended" during the pendency of the class action. See id. at 561,
We note that, in at least some cases, the named plaintiff also may appeal the denial of class certification, even if she prevails on the merits below, settles her claim, or otherwise ceases individually to have a controversy with the defendant. See Deposit Guaranty Nat'l Bank v. Roper,
The Second Circuit in Korwek also noted that "[t]he motion for amendment [of the district court's order denying certification] under Rule 23(c)(1), a mechanism which protects scarce administrative resources while ensuring re-evaluation of a frequently complex question, provides adequate opportunity for" putative class members expediently to address asserted errors in the district court's initial class certification decision. See Korwek,
The dissent also cites several district court opinions, see West Haven Sch. Dist. v. Owens-Corning Fiberglas Corp.,
Note that, under Rule 23, there are numerous reasons why a district judge might deny class certification. For example, the named plaintiff may not be an adequate class representative; there may be too few putative class members to make a class action worthwhile; or the putative class claims may be too diverse to make a class action workable. See Fed.R.Civ.P. 23(a), (b)
Rule 54(b) provides:
Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
Fed.R.Civ.P. 54(b). A final judgment under Rule 54(b) will not be available to excluded putative class members, because they are not party plaintiffs and therefore present no claim upon which the district court can enter judgment.
Section 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b).
Estelle stated that:
The Writs of Mandamus and Prohibition ... are reserved for really extraordinary causes, and should be issued only when the right to such relief is clear and indisputable. To some extent they are supervisory in nature and are used to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. They are not to be used as a substitute for appeal, or to control the decision of the trial court in discretionary matters.
The Writ is thus a drastic remedy, that must not be used to regulate the trial court's judgment in matters properly left to its sound discretion, but that may be available to confine the lower court to the sphere of its discretionary power.
Estelle,
A district court's class certification decision, in and of itself, will constitute a "clear usurpation of power" or a failure to carry out a ministerial task only in the most unusual of circumstances
Both Temple and Greenman involved a district court's certification of mandatory classes in mass tort cases; when the district court has certified a non-mandatory class, the argument that the court has clearly abused its discretion, and that mandamus relief is appropriate, will be much more difficult, because the district court's decision will have left other avenues of relief. Moreover, as the Temple court noted, "any certification of a mandatory class in a mass tort case [such as Greenman or Temple ], especially one predominantly involving issues of liability and compensation, must be reviewed with utmost scrutiny [because] [s]uch certification clearly implicates the Anti-Injunction Act." Temple,
Courts of appeals are less likely to direct the certification of a class than to direct a decertification simply because it is easier to notice abusively exercised discretion, or legal error, in a certification already granted, than it is to pick one hypothetical class definition, from a myriad of possible definitions, and confidently conclude that that one definition is so clearly the right one that the district court abused its discretion in failing to certify that one class
Class certification orders are also not among the sorts of interlocutory orders over which the courts of appeals have jurisdiction pursuant to 28 U.S.C. § 1292(a). See Wyatt v. Rogers,
This not to say that "no district court order involving some exercise of discretion may be reviewed in a § 1292(b) appeal," see Katz v. Carte Blanche Corp.,
It has also been suggested that a denial of class certification might be reviewable under the "collateral order doctrine" established in Cohen v. Beneficial Industrial Loan Corp.,
To come within the "small class" of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. Abney v. United States,
Coopers & Lybrand v. Livesay,
The final judgment supporting review of a class certification decision under section 1291 could arise in numerous ways: after settlement and dismissal, see, e.g., Nichols v. Mobile Bd. of Realtors, Inc.,
The district court's reading of the law that controls its discretionary certification decision is of course reviewed de novo for error. As noted supra, rulings on such questions of law can also support a discretionary interlocutory appeal under 28 U.S.C. § 1292(b)
Age discrimination cases are especially likely to grow stale, as many plaintiffs and witnesses are at or near retirement age when the litigation commences, and could be in failing health or deceased by the time a final judgment is entered and appellate review of the class certification decision has run its lengthy course
See supra note 6
The dissent's tolling rule, if utilized by disappointed putative class members, would leave them waiting for years for tolling to end, along with the defendants. We doubt whether many claimants would in fact delay their day in court by several years in hopes of success on appeal, simply because any such hopes are usually slight. As explained in the text, to the extent that claimants might be inclined to rely on appeals of the denial of class certification, such reliance is unreasonable and is to be discouraged. To the extent that excluded putative class members might in fact take advantage of the dissent's rule, they could be expected to do so in large part because of the rule's prejudicial effect on defendants. See discussion infra
By conditioning tolling upon the named plaintiffs' decision to appeal and upon putative class members' decisions to file individual suits, the dissent's rule would leave decisions regarding the tolling period in the hands, not of the court, but of plaintiffs and putative class members. The potential for abuse under such an arrangement is significant. Defendants, for instance, regularly extract waivers of the right to appeal from named plaintiffs at settlement, and named plaintiffs have a powerful incentive to grant such waivers; under the dissent's rule, the granting of such a waiver would presumably cause the limitations period to resume running--an unpleasant surprise for putative class members, whom the dissent wants to rely on the appeals process. The dissent's rule would also encourage plaintiffs and plaintiffs' counsel to file overly broad class complaints; if the limitations period may be tolled indefinitely merely by the filing of a class complaint, there will be an incentive to draw the putative class in the broadest terms possible, so as to toll limitations even as regards claimants who cannot reasonably expect to be included in any class
Proposed Federal Rule of Civil Procedure 23(f), holds the potential to change this analysis if passed in its current form. Proposed Rule 23(f) reads:
(f) Appeals. A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
F.R.D. 559, 560 (1996). If the rule passes, and if it significantly increases the frequency of interlocutory appeals of class certification orders--a development which would depend in large part upon how this court chooses to exercise the discretion granted to it by the proposed rule--then we may revisit the decision taken today, and might for instance allow continued tolling of statutes of limitations during the pendency of an appeal under the new rule. We decline, however, to speculate regarding how we might exercise our discretion under the proposed rule and to decide the instant case in reliance upon an as-yet un-enacted rule
The dissent also suggests that a stay of a district court's order denying class certification pending review under the proposed rule would operate to toll the limitations period until the interlocutory appeal has been settled. We do not find support for this proposition in the text of the proposed rule. In the absence of guidance, we do not hold that a stay of a district court's order denying certification would toll the limitations period, either under the proposed rule or under the law controlling our decision today. A stay of an order does not constitute a challenge to that order, and a stay of a denial of class certification in itself offers no reasonable hope for later reversal of the order.
Note that the dissent's rule would justifiably save filings only when the district court has abused its discretion--that is, in the uncommon case
The NAACP Legal Defense Fund, as amici curiae, have suggested that we today fashion a rule requiring the district courts to notify excluded putative class members of the court's denial of certification in all class actions, as is required in ADEA "opt-in" class actions. We regard this as an unworkable proposition and, in any case, we do not think it unjust to require that claimants who take advantage of Crown, Cork tolling also monitor developments in the district court and file individually when necessary
In contrast, under the dissent's rule, the tolling period would vary widely from case to case--depending on whether the named plaintiffs settle, or prevail at trial and do not seek review through appeal or cross-appeal of the certification issue, or lose at trial and take all appeals due them. The limitations period would be dictated by the time it takes to bring a case to conclusion in the district court and to allow the appellate process to run, and by the plaintiffs' strategic decisions regarding which actions to take, and when
The disappointed putative class member might also seek consolidation of his case with the original class action pursuant to Fed.R.Civ.P. 42. The dissent's rule, we note, would frustrate the policy behind consolidation of cases: Most disappointed putative class members' individual suits would not be amenable to consolidation under the dissent's rule, because under that rule, disappointed putative class members may choose to file their individual suits at any point during the years-long process of trial and appeal. Many of these individual cases would presumably be filed at widely different times, and consolidation would therefore not be practicable. In contrast, under the rule we adopt, the class certification decision and subsequent decisions to file individual suits--and therefore also decisions regarding consolidation of those suits--will come early in the litigation and all at roughly the same time
The dissent argues that the rule we adopt today should not apply retroactively to the appellants. Retroactive application of a "new" rule of law may be avoided only if:
1) the decision adopting the rule does so "either by overruling clear past precedent or by deciding an issue of first impression the resolution of which was not clearly foreshadowed;" and
2) "the application of the old rule in the instant case [does] not contravene the purpose and operation of the provision being interpreted;" and
3) "application of the new rule in the instant case [would] be inequitable."
McKinney v. Pate,
Appellant Lerche's EEOC notice is not in the record; however, an undisputed affidavit filed by the appellees indicates that the EEOC orally informed Lerche of the dismissal of his age discrimination charge while he was a putative member of the Carmichael class action. In any event, appellants do not argue that Lerche should be treated differently
Instead of filing their own EEOC charges, the three appellants relied on the timely filed EEOC charge of Raymond T. McGoldrick, one of the named plaintiffs in the Carmichael class action
Martin Marietta asserts that all three opted in much later than June 4, and that all three actually opted in after the 300-day EEOC filing period had elapsed. The inadequate record on appeal, however, does not establish this assertion. We therefore adhere to our assumption, see note 6, supra, that all appellants opted in on June 4. The result remains the same
We reach this conclusion on the basis of an undisputed affidavit, filed by a Martin Marietta EEO officer, which states that none of the three appellants filed with the EEOC before the date of the affidavit (January 17, 1995)
Lest this result seem inequitable, we note that appellants' counsel discussed Griffin v. Singletary at length in their response to Martin Marietta's motion for partial summary judgment, and relied on that opinion's adoption of the "piggybacking" rule in arguing for the inclusion of Clarke-Iley, Johnson, and Shaw in the instant action. It is not inequitable to hold these appellants to Griffin 's other holding: that once class certification has been denied to a piggybacking claimant, she must hie herself to the EEOC in order to seek further consideration of her claim
The EEOC was apparently relying on the pre-1991 ADEA statute of limitations. See supra note 4
Proposed Federal Rule of Civil Procedure 23(f) states:
(f) Appeals. A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
Unlike the majority, I find no reason not to conclude that a stay necessarily tolls the applicable statute of limitations. After all, "[t]o 'stay' an order ... means to hold it in abeyance, or refrain from enforcing it." Black's Law Dictionary 1267 (5th ed.1979). In the abundance of caution, however, ousted plaintiffs may wish to accompany their motion to stay with a motion asserting that good cause exists for continued tolling
On November 12, 1997, the Judicial Conference of the United States forwarded the proposed amendment to the Supreme Court with the recommendation that the "amendment be approved by the Court and transmitted to the Congress pursuant to law." Memorandum from Leonidas Ralph Mecham, Director, Administrative Office of the United States Courts, to the Chief Justice of the United States and the Associate Justices of the Supreme Court (Nov. 12, 1997). See 28 U.S.C. §§ 2072-74 (1994). On or before May 1, 1998, the Supreme Court will decide whether to approve the proposed rule and transmit it to Congress. See 28 U.S.C. § 2074(a). If adopted, the rule could take effect as early as December 1, 1998. See 28 U.S.C. § 2074(a)
I am mindful of dicta in Chardon v. Soto,
See also West Haven Sch. Dist. v. Owens-Corning Fiberglas Corp.,
Supportive language for the view endorsed in Calderon can also be found in the following cases: Nelson v. County of Allegheny,