Commercial Litigation and Arbitration

Class Actions — Rule 23(f) — Vacating and Reinstating Certification Order Ineffective to Re-Start 10-Day Appeal Period

Federal Rule of Civil Procedure 23(f) provides that: ‛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.“ The ten-day time limit is jurisdictional.

The plaintiffs in Jenkins v. BellSouth Corp., 2007 U.S. App. LEXIS 15759 (11th Cir. July 2, 2007), an employment discrimination class action, were denied class certification on November 7, 2006. The filed a Rule 23(f) petition for permission to appeal that denial on November 24, 2006. Because they missed the ten-day deadline (by two days), the Eleventh Circuit dismissed the petition as untimely. Claiming excusable neglect, the plaintiffs persuaded the District Court to vacate and reenter its order to start the clock running again. This time the courier service made it to the Eleventh Circuit on schedule. The issue for the Court of Appeals was whether this procedure was effective to permit interlocutory review of the order denying class certification.

The Eleventh Circuit acknowledged that this procedure would be effective to re-commence a new period for filing a petition for interlocutory review under 28 U.S.C. § 1292(b). It rejected the 1292(b) analogy, however, because Rule 23(f) does not require either a district court certification or the presence of a controlling question of law. Quote of note: ‛The question in this putative class action is whether a district court is empowered to sponsor a revival of a right to seek an interlocutory appeal of its decision about class certification as frequently and spontaneously as an evangelical preacher leads a revival for a congregation. We think not.“ The Eleventh Circuit dismissed the Rule 23(f) petition for lack of jurisdiction.

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