Nucor Corporation v. Quinton Brown, No. 14-154 (4th Cir. 2014)

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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 Corporation sought class and action Nucor decertification environment claims. Steel of litigation, Berkeley a class Defendants (collectively, alleging Nucor Nucor ) hostile work 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: promotions impact class--involving claims--and a disparate hostile work treatment environment and a disparate class. The district court denied a motion to reconsider the certification order, and Nucor decertification. subsequently filed four motions for 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. the court denied a third motion to decertify, Nucor After sought decertification of the hostile work environment class in light of Comcast district Corp. court v. denied Behrend, this 133 motion. 2 S. Ct. Nucor 1426 (2013). now embarks The on a 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 fourteen days of the order. (4th Cir. 2013). order must be filed within Pashby v. Delia, 709 F.3d 307, 318 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). class-action status This is because [a]n order that leaves unchanged from what was determined by a prior order is not an order granting or denying class action certification. (10th Cir. 2006). Carpenter v. Boeing Co., 456 F.3d 1183, 1191 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 petition untimely. two years after these parameters, we find Nucor s instant The fourth motion for decertification, filed 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 denying certification as to that class. 1191. not orders granting or Carpenter, 456 F.3d at We will not render the Rule 23(f) deadline toothless by permitting Nucor to easily circumvent Rule 23(f) s deadline by 4 filing a motion to amend or decertify the class at any time after hostile the district work court s environment original class. order Fleischman, certifying 639 F.3d at the 31 (quoting In re DC Water & Sewer Auth., 561 F.3d at 496-97). 2 The latest Nucor of the hostile work after the could have environment appealed class the was certification fourteen days 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. 5

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