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

_______________

m 04-10819

Summary Calendar

_______________



### L INDSEY 

### B ALDRIDGE 

### ; I RIS 

### E LAINE 

### M OSLEY 

### ; C INDY 

### O PAITZ 

### ; L INDA 

### S AUNDERS 

### ;

S USAN 

### M IMMS 

### ; L

EROY 

### D URAN 

### ; F RANK 

### B RISENO 

### ; J AMES 

### B ULLS 

### ; R OYCE 

### G LENN 

### ;

M ICHAEL 

### W ATKINS 

### ; S TEVEN 

### M ADRID 

### ; L INDA 

### S AN 

### P EDRO



### ,

Plaintiffs-Appellees,

VERSUS



### SBC C OMMUNICATIONS



### , I NC



### ., A D ELAWARE C ORPORATION ;



### C INGULAR 

### W IRELESS 

### LLC,

A D ELAWARE L IMITED L IABILITY C OMPANY

,



### Defendants-Appellants



### .

_________________________

Appeals from the United States District Court

for the Northern District of Texas

______________________________2

Before D AVIS , S MITH , and D ENNIS

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

The defendants seek

an i nterlocutory appeal

of a class certi fication order under 29 U.S.C.

§ 216(b), which

is part of the Fair Labor

Standard s Act (“FLSA”). We dismiss for

want of appellate jurisdiction. The collateral

ord er exception to the final judgment rule is

inapplicable, because the question of § 216(b)

class certification has not yet been conclusively

determined and is st ill subject to revision by

the district court.

I.

The plaint iffs, employees of Cingular Wireless LLC (“Cingular Wireless”), filed an action

for overtime pay under the FLSA. After

di s covery had commenced, the district court

certified the case as a collective action under §

216(b), then modified the certificat i on by

drast ically narrowing the scope of the class.

The court declined t o 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 ord er pursuant to

the “colla t eral order” exception to the final

judgment rule of 28 U.S.C. § 1 2 91, derived

from Cohen v. Beneficial Indus. Loan Corp.,

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

an order conditionall

y certifying a class and

authorizing notice is not a fina l decision,

terminating the litigation and allowing appeal

under § 1291. “To come within the ‘small

class’ of d e cisions excepted from the finaljudgment rule by Cohen , the order must conclusively deter mine the disputed question, resolve an important issue completely separate

from the merits of th e 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 C ohen collateral

order do ctrine to cover class certification

questions, finding i nter alia that a Federal

Rule of Civil Procedure 23 class certification

decision does not conclusively determine the

disputed question, because the order is subject

to revision in the distri ct co urt. Similarly, in

Lusardi v. Xerox Corp.

, 747 F.2d 17 4, 175,

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

Coopers & Lybrand to certification decisions

under § 7(b) of the Age Discr i mination in

Employment Act of 1967, which incorporates

the language of § 216(b) in est ablishing its

collective action provision 

### SS similarly findin g

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

possible decertification.

Just as in Coopers & Lybrand and Lusardi

, the class certification order here is subject to

revision before the district court addresses the

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 is true that the Court was reviewing a decertification order, the Court 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 t o consi der

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

allows for interlocutory review of class certification decisions at the discretion of the respective courts of appeals under rule 23. 4 But,

as the district c o urt 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 &

L ybrand may have been abrogated by the

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

is persuasive of the method by which we should ana lyze t he application of C ohen to questions of class certification in the absence of

such a procedural rule or similar legisla t ive

enactme nt . That is the situation with which

we are confronted 

### SS

all we have before us is

t he 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 t his

class action suit, t hey po int to several cases

from other circuits 5 that consider costs a n d

pressures on the defendant to settle as important factors appellate courts should consider in

deciding whether to grant interlocutory review

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

accompanying the rule.

Although such policy concerns may be

p roper for legislative attention, they are ir

relevant to the issue of whe ther the C ohen

collateral order exception applies. C oopers &

Lybrand

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

context, “[i]f the expense o f lit igation were a

sufficient reason

fo r granting an exception to

the final judgment rule, the exception might

well swallow the rule.” L us a rdi

, 747 F.2d at

178. Any policy justifications are not relevant

to § 216(b) collective actions in the absence of

an applicable pro cedural rule or act of Con2 (...continued)

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

class’ of decisions excepted f r om the final-judgment rule by Cohen .” C oop ers & Lybrand , 437

U.S. at 468-69.

3 Although the def

endants may be correct in

notin g that the burden of persuasion shifts from

plaintiffs (to sho w the merits of certification) to

defendants (to show the merits of decertification),

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

concerns regarding differing burdens of proof do

not overcome the overriding interests of the finaljudgment rule SS

preventing “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

certif ication orders under rule 23, it relied on the

logic of Coopers and pre-da ted the enactment of

rule 23(f). 5 Prado-Steiman v. Bush

, 221 F.3d 1266, 1272

(11th Cir. 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 wil l 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 o f

class certification has not yet been conclusively

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 me mber 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 concl u de that

the default rule allows rule 23 certification orders,

on average, to result in larger, more financiall y

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.