United States Court of Appeals

Fifth Circuit

FILED

March 28, 2005

Charles R. Fulbruge III

Clerk

REVISED MARCH 29, 2005

In the

United States Court of Appeals

for the Fifth Circuit

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m 04-10819

Summary Calendar

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LINDSEY BALDRIDGE; IRIS ELAINE MOSLEY; CINDY OPAITZ; LINDA SAUNDERS;

SUSAN MIMMS; LEROY DURAN; FRANK BRISENO; JAMES BULLS; ROYCE GLENN;

MICHAEL WATKINS; STEVEN MADRID; LINDA SAN PEDRO,

Plaintiffs-Appellees,

VERSUS

SBC COMMUNICATIONS, INC.,

A DELAWARE CORPORATION;

CINGULAR WIRELESS LLC,

A DELAWARE LIMITED LIABILITY COMPANY,

Defendants-Appellants.

_________________________

Appeals from the United States District Court

for the Northern District of Texas

______________________________
2

Before DAVIS, SMITH, and DENNIS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The defendantsseek an interlocutory appeal

of a class certification order under 29 U.S.C.

§ 216(b), which is part of the Fair Labor

Standards Act (“FLSA”). We dismiss for

want of appellate jurisdiction. The collateral

order exception to the final judgment rule is

inapplicable, because the question of § 216(b)

class certification has not yet beenconclusively

determined and is still subject to revision by

the district court.

I.

The plaintiffs, employees ofCingular Wireless LLC (“Cingular Wireless”), filed an action

for overtime pay under the FLSA. After

discovery had commenced, the district court

certified the case as a collective action under §

216(b), then modified the certification by

drastically narrowing the scope of the class.

The court declined to certify an interlocutory

appeal under 28 U.S.C. § 1292(b) and has

scheduled a date to consider a motion for

decertification of the class.

II.

We are presented with the res nova issue of

whether we have appellate jurisdiction over a

§ 216(b) class certification order pursuant to

the “collateral order” exception to the final

judgment rule of 28 U.S.C. § 1291, derived

from Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949). As a threshold matter,

an order conditionally certifying a class and

authorizing notice is not a final decision,

terminating the litigation and allowing appeal

under § 1291. “To come within the ‘small

class’ of decisions excepted from the finaljudgment rule by Cohen, the order must conclusively determine the disputed question,

resolve an important issue completelyseparate

from the merits of the action, and be effectively unreviewable on appeal from a final

judgment.” Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978). Only “serious and

unsettled question(s)” come within the meaning of the Cohen rule, and it is a strictly construed doctrine.1

In Coopers & Lybrand, id. at 469, the

Court refused to extend the Cohen collateral

order doctrine to cover class certification

questions, finding inter alia that a Federal

Rule of Civil Procedure 23 class certification

decision does not conclusively determine the

disputed question, because the order issubject

to revision in the district court. Similarly, in

Lusardi v. Xerox Corp., 747 F.2d 174, 175,

177-78 (3d Cir. 1984), the court extended

Coopers & Lybrand to certification decisions

under § 7(b) of the Age Discrimination in

Employment Act of 1967, which incorporates

the language of § 216(b) in establishing its

collective action provisionSSsimilarly finding

that the certification order lacked conclusiveness because it was subject to revision and

possible decertification.

Just asin Coopers & Lybrand and Lusardi,

the class certification order here is subject to

revision before the district court addressesthe

merits.2 As we have noted, the court has

1 Cohen, 337 U.S. at 547; In re Corrugated

Container Antitrust Litig., 611 F.2d 86, 89 (5th

Cir. 1980).

2 Cingular Wireless argues that Coopers & Lybrand does not apply because it involved a decision

to decertify, rather than certify, a class. Although

it istrue that theCourt wasreviewing a decertification order, theCourt made the broad statement that

“[a]n order passing on a request for class certifica-

(continued...)
3

already used its discretion to modify the original certification order to limit the scope of the

class and has scheduled a date to consider

decertification before trial begins.3

The defendants correctly point out that the

holding in Coopers & Lybrand is abrogated to

the extent that the subsequently enacted Federal Rule of Civil Procedure 23(f) specifically

allowsfor interlocutory review of class certification decisions at the discretion of the respective courts of appeals under rule 23.4

 But,

as the district court observed, this case involves a “garden-variety” § 216(b) FLSA

action and is not a rule 23 class action, so rule

23(f) is inapplicable. 

Although the holding of Coopers &

Lybrand may have been abrogated by the

enactment of rule 23(f), the Court’s reasoning

is persuasive of the method bywhich we should analyze the application of Cohen to questions of class certification in the absence of

such a procedural rule or similar legislative

enactment. That is the situation with which

we are confrontedSSall we have before us is

the final judgment rule of § 1291, the FLSA

collective action provision, and Cohen.

The defendants also argue at length that we

should look persuasively at the policies behind

rule 23(f) when analyzing whether the Cohen

doctrine applies to confer jurisdiction over

their attempted appeal. After noting the vast

expenses they anticipate in defending this

class action suit, they point to several cases

from other circuits 5that consider costs and

pressures on the defendant to settle as important factors appellate courtsshould considerin

deciding whether to grant interlocutoryreview

under rule 23(f), based on the committee notes

accompanying the rule.

Although such policy concerns may be

proper for legislative attention, they are irrelevant to the issue of whether the Cohen

collateral order exception applies. Coopers &

Lybrand, 437 U.S. at 470. Outside the rule 23

context, “[i]f the expense of litigation were a

sufficient reason for granting an exception to

the final judgment rule, the exception might

well swallow the rule.” Lusardi, 747 F.2d at

178. Any policy justifications are not relevant

to § 216(b) collective actionsin the absence of

an applicable procedural rule or act of Con2

(...continued)

tion does not fall in [the] category” of “the ‘small

class’ of decisions excepted from the final-judgment rule by Cohen.” Coopers & Lybrand, 437

U.S. at 468-69.

3 Although the defendants may be correct in

noting that the burden of persuasion shifts from

plaintiffs (to show the merits of certification) to

defendants (to show the merits of decertification),

the difference is irrelevant. A decertification decision would be a revision of the original order, so

concerns regarding differing burdens of proof do

not overcome the overriding interests of the finaljudgment ruleSSpreventing “the hazard [of] piecemeal appeals [that] burden the efficacious administration of justice and unnecessarily protract litigation.” In re Nissan Motor Corp. Antitrust Litig.,

552 F.2d 1088, 1094 (5th Cir. 1977).

4 Moreover, although Lusardi did not deal with

certification orders under rule 23, it relied on the

logic of Coopers and pre-dated the enactment of

rule 23(f).

5 Prado-Steiman v. Bush, 221 F.3d 1266, 1272

(11thCir. 2000)(“[A]n appeal ordinarily should be

permitted when the grant of class status raises the

stakes of the litigation so substantially that the defendant likely will feel irresistible pressure to settle.”)(quoting Waste Management Holdings, Inc.,

v. Mowbray, 208 F.3d 288, 293 (1st Cir. 2000));

see also Blair v. Equifax Check Servs., Inc., 181

F.3d 832, 834 (7th Cir. 1999).
4

gress.6 Accordingly, because the question of

class certification has not yet beenconclusively

determined, the Cohen collateral order exception to § 1291 is inapplicable.

The appeal is DISMISSED for want of

jurisdiction.7

6 A critical difference between a § 216(b) class

action and a rule 23 class action is that the former

requires each class member to opt in as a party

plaintiff, but the latter includes all absent class

members who do not affirmatively opt out. Consequently, Congress could rationally conclude that

the default rule allows rule 23 certification orders,

on average, to result in larger, more financially

onerous classes, thereby giving stronger policy

justification for a special procedural rule allowing

interlocutory appeals of those orders and trumping

the final judgment rule of § 1291.

7

 The plaintiffs have requested sanctions under

Federal Rule of Civil Procedure 38 and our local

rules. Because this appeal is not frivolous, we

deny the request.