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In re Brewer

United States Court of Appeals, District of Columbia Circuit

July 21, 2017

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

          Argued September 12, 2016

         On Petition for Permission to Appeal Pursuant to Federal Rule of Civil Procedure 23(f) (No. 1:08-cv-01747)

         Appeals from the United States District Court for the District of Columbia (No. 1:08-cv-01747)

          Thomas J. Henderson argued the cause for petitioner. With him on the briefs was David W. Sanford.

          Joshua 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.

         This 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.

         Brewer 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 certification.

         For the 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.

         I. Background

         The lengthy and somewhat convoluted history of this case is depicted in the figure below and described in the following paragraphs.

         (Image Omitted)

         In 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 duty assignments."

         A. Herman Brewer

         The 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 action.

         Before 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.

         By 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.

         Class 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.

         The 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).

         In 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 claims."

         Brewer timely petitioned this court for interlocutory review of the denial of class certification pursuant to Rule 23(f).

         B. Settlement and Intervention

         Starting 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.

         (Image Omitted)

         While 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 ...

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