United States Court of Appeals, District of Columbia Circuit
In re: Herman Brewer, Individually and on behalf of a class of all other persons similarly situated, Petitioner Keith Harrington, et al., Appellants
Jeff Sessions, U.S. Attorney General, Appellee
September 12, 2016
Petition for Permission to Appeal Pursuant to Federal Rule of
Civil Procedure 23(f) (No. 1:08-cv-01747)
from the United States District Court for the District of
Columbia (No. 1:08-cv-01747)
J. Henderson argued the cause for petitioner. With him on the
briefs was David W. Sanford.
M. Salzman, Attorney, U.S. Department of Justice, argued the
cause for respondent. With him on the brief were Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, and
Marleigh D. Dover, Attorney.
Before: Brown, Circuit Judge, and Edwards and Ginsburg,
Senior Circuit Judges.
Ginsburg, Senior Circuit Judge.
case comes to the court on a petition for interlocutory
appeal of the district court's denial of certification
for a class consisting of African-American deputy U.S.
Marshals alleging racial discrimination by the United States
Marshals Service (USMS). The district court denied class
certification on the ground that the sole named plaintiff,
Herman Brewer, did not satisfy the adequacy and typicality
requirements of Federal Rule of Civil Procedure 23(a)
because, as a former USMS employee, he lacked standing to
pursue class-wide injunctive relief.
petitioned this court for interlocutory review under Rule
23(f) but, while his petition was pending, he settled his
individual claims with the Government, and the parties
stipulated to the dismissal of the action in district court
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
That rule allows the parties voluntarily to dismiss a suit
without a court order by filing a jointly signed stipulation
with the court. Upon notice of the stipulation, four current
and former deputy U.S. Marshals moved to intervene in this
court in order to pursue the petition Brewer had filed to
review the district court's denial of class
reasons discussed below, we grant the motion to intervene but
decline the petition for review as presenting no question
that falls within our discretion to hear an interlocutory
appeal under the framework announced in Lorazepam &
Clorazepate Antitrust Litigation, 289 F.3d 98 (D.C. Cir.
2002). We remand the case to the district court to entertain
motions to substitute absent class members as named
plaintiffs and such further proceedings as may be warranted.
lengthy and somewhat convoluted history of this case is
depicted in the figure below and described in the following
October 2008 deputy U.S. Marshal David Grogan filed a
putative class action against the USMS on behalf of himself
and similarly situated current and former African-American
deputy U.S. Marshals, alleging racial discrimination in
violation of Title VII of the Civil Rights Act of 1964.
Although the suit was also for monetary damages, the class
complaint states that "[i]njunctive and declaratory
relief are the predominant forms of relief sought . . .
because they are absolutely necessary to the cessation of
discrimination and elimination of the effects of past
discrimination." The current complaint alleges the USMS
has violated Title VII through three policies or practices.
First, it challenges several features of the USMS's Merit
Promotion Plan that allegedly impede the promotion of
African-American employees. Second, the complaint claims the
Marshals's practice of noncompetitively selecting
employees for lateral duty assignments diminishes class
members' opportunities for career advancement. Finally,
it claims USMS procedures have disproportionately excluded
African-Americans from career-enhancing "Headquarter
putative class originally advanced five types of claims,
relating to pay awards, training, internal investigations,
assignments, and promotions, only the last two of which
survive in the current litigation. In 2010 Grogan, the
original and then-sole named plaintiff, moved to amend the
class complaint to add Brewer and Fayette Reid as class
representatives for claims relating to awards, training,
assignments, and promotions. The district court granted the
motion in relevant part. In 2013 Grogan filed a stipulation
of dismissal of his individual claims and dropped out of the
Grogan exited the litigation, the Government had moved for
summary judgment on all claims. Later in 2013 the district
court granted the motion in part, eliminating the claims
relating to awards, training, and investigations. Brewer
v. Holder, 20 F.Supp.3d 4, 17-23 (D.D.C. 2013);
Brewer v. Holder, No. 08-CV-1747, at 3-4 (D.D.C.
Oct. 11, 2013). This effectively eliminated Reid as class
representative for her now-dismissed claims relating to
awards, training, and assignments. As a result, by October
2013, Brewer was the sole named plaintiff representing only
the assignments and promotions claims.
statute, deputy U.S. Marshals face mandatory retirement at
age 57. 5 U.S.C. § 8335(b)(1). Brewer, who turned 57 in
July 2013, received extensions totaling eight months and
retired from the USMS on March 31, 2014.
discovery closed in June 2014, and Brewer filed two motions
on July 1, 2014, three months after he retired and more than
four years after a deadline set by scheduling orders to amend
the complaint. The first motion sought leave to amend the
complaint to substitute four additional plaintiffs as class
representatives. The district court denied that motion in
April 2015, holding Brewer had not diligently pursued
substitution upon notice of his impending retirement and the
departure of the other named plaintiffs.
second motion was for class certification. The Government
opposed certification on several grounds. First, it argued
the proposed class definition was ambiguous and overbroad.
Second, the Government contended Brewer was an inadequate
class representative because, as a former employee, he lacked
standing to pursue injunctive relief. Third, it pointed to
intra-class conflicts between USMS subordinates and
supervisors (including Brewer), thereby arguably making him
an inadequate class representative. Finally, the Government
challenged whether the class complaint satisfied the
commonality, typicality, and predominance prerequisites to
certification under Rule 23(a) and (b)(3).
September 2015 the district court denied class certification.
Specifically, the court held that, although the complaint
sufficiently defined a class of USMS employees, Brewer, as a
former employee ineligible for reinstatement, could not
adequately represent a class that predominantly sought
injunctive relief. Nor were Brewer's individual claims
for monetary damages typical of class-wide claims for
injunctive relief. Although the court said the
"Plaintiffs face a significant challenge in meeting the
three remaining prerequisite[s] [other than numerosity],
" it did not reach the Government's other challenges
"because it is abundantly clear that Plaintiffs'
sole proposed class representative cannot adequately
represent the class members' interests." The
district court further refused to certify a narrower class
seeking only damages, reasoning that doing so would amount to
"claim splitting" and risked "jeopardizing the
class members' ability to subsequently pursue other
timely petitioned this court for interlocutory review of the
denial of class certification pursuant to Rule 23(f).
Settlement and Intervention
with the denial of Brewer's two July 2014 motions, the
history of this case is depicted in the figure below and
described in the following paragraphs.
his petition was pending, Brewer also engaged in confidential
settlement negotiations with the Government. They reached an
agreement disposing of his individual claims, and on July 22,
2016 Brewer filed a stipulation of dismissal pursuant to Rule
41(a)(1)(A)(ii). The same day Keith Harrington, Melanie
Thompson, Mariam Rodgers, and Frederick Robinson filed a
motion to intervene in order to continue pursuing the
petition for interlocutory review in this court. They also
moved to intervene in the district court in order to appeal
the denial of class certification. Three of the four would-be