The Ninth Circuit gets more requests to appeal class-certification decisions under Rule 23(f) than any other court. How do those requests fare? We take a look below, drawing from this invaluable nationwide study by Professor Bryan Lammon.
Background
Federal Rule of Civil Procedure 23(f) provides a way to immediately appeal orders granting or denying class certification. These interlocutory orders ordinarily would be appealable only after final judgment. But Rule 23(f) was added in 1998 because the class-certification decision is often a make-or-break moment. If the class is certified, the defendant feels overwhelming pressure to settle; if not, the plaintiff might drop the case. By allowing appeal before those pressures kick in, Rule 23(f) creates a chance to correct errors in these high-stakes decisions and to develop the law.
A Rule 23(f) appeal, however, is not automatic. A party must file a petition for permission to appeal, and the court of appeals has discretion over whether to grant it. To make that decision, the Ninth Circuit looks for: (1) a “death-knell situation” coupled with a “questionable” decision, (2) “an unsettled and fundamental issue” of class-action law important to the litigation and likely to evade end-of-case review, or (3) manifest error. Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005).
In the Ninth Circuit, Rule 23(f) petitions go to the motions panel, which rotates monthly. Just two judges decide the petitions (unless they call in a third judge, for example if the first two disagree). The motions panel typically issues only a brief order without reasoning; if the petition is granted, the case then goes to a merits panel for full briefing, argument, and decision.
A look at the Ninth Circuit’s Rule 23(f) docket
Despite their high stakes for the parties, Rule 23(f) petitions get little fanfare sitting on the motions panel’s docket. We’d like to shed some light on that docket. Our data below come from Prof. Lammon’s analysis of all Rule 23(f) petitions filed from 2013 through 2017, plus our own research on Ninth Circuit petitions filed from 2018 through 2021.
Volume: The Ninth Circuit gets a ton of Rule 23(f) petitions. The Ninth Circuit decides far more Rule 23(f) petitions than any other circuit—unsurprising given its size. In Prof. Lammon’s 2013-2017 data, the Ninth Circuit got over 50 petitions a year, while the next closest courts (the Second and Seventh Circuits) each got fewer than 20 annually. And the Ninth Circuit’s pace hasn’t dropped: from 2018 to 2021, the court saw an average of about 60 petitions per year.
Rule 23(f) outcomes: It’s tough to seek Rule 23(f) appeal in the Ninth Circuit, especially as a defendant. The Ninth Circuit is one of the stingiest courts in the country when it comes to permission to appeal under Rule 23(f). Prof. Lammon found the Ninth Circuit granted only 18% of Rule 23(f) petitions from 2013 to 2017—lower than any other circuit but one (the D.C. Circuit, which decided only 7 petitions in that period). We found the Ninth Circuit had a similarly low grant rate from 2018 to 2021, about 20%. And that rate was only 10% for petitions filed last year (2021). Prof. Lammon found a statistically significant gap between the Ninth Circuit and the most generous Rule 23(f) court (the Fifth Circuit, with a grant rate of 50%).
It’s especially tough to be a defendant filing a Rule 23(f) petition in the Ninth Circuit. On the surface of Prof. Lammon’s data, Ninth Circuit plaintiffs and defendants seemingly had similar success—19% and 17% of petitions granted, respectively. What is noteworthy about that parity, however, is that nationally defendants seeking Rule 23(f) review do better than plaintiffs. So while the Ninth Circuit’s 19% grant rate for plaintiffs was in line with the national plaintiffs’ average of 21%, the Ninth Circuit defendants’ rate (17%) was quite a bit below the national defendants’ average of 27%. And even the surface-level parity in Prof. Lammon’s data has disappeared in recent years—we found from 2018 to 2021 that Ninth Circuit plaintiffs had a whopping 29% grant rate, while defendants sat at a measly 13%. (That recent disparity, though, was biggest in 2018-2019 and lessened in 2020-2021.) As Prof. Lammon explains, these figures come with caveats, and he found little statistically significant evidence of courts treating plaintiffs and defendants differently. But to the extent there is a difference in the Ninth Circuit, it appears to disfavor defendants.
Merits outcomes: In the Ninth Circuit, reversal of class-certification decisions is relatively rare. Once Rule 23(f) appeal is granted, courts of appeals nationwide reverse the district court roughly half the time (54% for 2013-2017 petitions). But the Ninth Circuit reverses less often: 37% for 2013-2017 petitions, and 44% for 2018-2021 petitions. These reversal rates, Prof. Lammon found, do not differ significantly depending on which party is appealing. The Ninth Circuit’s low 23(f) grant rate, combined with its low reversal rate, means that only a few lucky petitioners achieve their ultimate goal—reversal of a class certification grant or denial.
Timing: The Ninth Circuit generally decides Rule 23(f) petitions in 3 months. We found the Ninth Circuit decides Rule 23(f) petitions in about 85 days on average—in line with the national average according to Prof. Lammon’s data. But there’s a lot of variation behind that average. Many petitions were decided more quickly—over 30% of the petitions we saw were decided within 60 days, and over 60% within 90 days—but some took much longer, with 17% taking longer than 120 days.
The timing is roughly similar whether the petition is granted or not. Grants took slightly longer—90 days on average, compared to 83 days for denied petitions—but it’s unclear whether that’s a meaningful difference.
Amicus participation: Petition-stage amici are rare.Amici weighed in on Rule 23(f) petitions in only 4% of the Ninth Circuit cases we looked at. That’s not surprising, as the deadlines for these petitions are so tight, there’s not much time for amici to get involved (14 days to file the petition and 10 days to file the response).
When amici did participate at the Rule 23(f) stage in the cases we saw, the petition was granted four times as often. But it’s impossible to draw firm conclusions from that. Not only is our data set small, but we can’t tell which of those petitions would have been granted even without amicus participation. After all, if a petition was strong enough to grab amici’s attention, it might have been strong enough on its own to grab the court’s attention as well. On the other hand, the presence of an amicus brief does signal to the court that the issue presented by petitioner is of interest to other parties.
The bottom line
Rule 23(f) petitions are a valuable tool for disappointed litigants to get appellate review and for courts to develop class-action law. And they are popular in the Ninth Circuit, which has more Rule 23(f) activity than any other court. But the Ninth Circuit uses its Rule 23(f) power relatively sparingly, granting review less often and—even when it does grant review—affirming the district court more often.