No Second Bite of the Appellate Apple
Rule 23(f) provides an important exception to the “final judgment rule,” and allows interlocutory appeal of class certification decisions. When the district court makes only one “class certification” decision, the application of Rule 23(f) is fairly straightforward. But what happens when the district court – after making an initial class certification ruling – rules on a motion to decertify the class? Is the denial of that motion also appealable? Most courts have said “no,” and you can understand why: motions to decertify and Rule 23(f) applications could go on endlessly. In a recent order, Judge Gregory wrote that “the time for appeal [under Rule 23(f)] will not reset when a court rules on certification motions filed subsequent to the original motion so long as the later rulings do not alter the original ruling.” So, in the Fourth Circuit, unless the new ruling changes or adjusts in some respect the original ruling on class certification, a litigant does not get to reset the 14-day interlocutory appeals clock under Rule 23(f).
