PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2096

SAMUEL CALDERON, individually and on behalf of other 

similarly situated individuals; MICHAEL HEADLEY; AARON 

KULSIC; KENNETH MILLER; MICHAEL CREAMER; GEORGE WOOD; 

ROBERT DEMARTINO; JOHN HALLIDAY; JAMES L. HANSON; THOMAS F. 

BRADY; DANA FERRIN; MAUREEN AYLING; CANDIDO CUBERO; THOMAS 

FITZGERALD; WILLIAM DOLINSKY; MARVIN HOURIGAN; DAVID 

MCCAMLEY; AUGUSTUS STANSBURY, JR.; JOAN BISCHOFF; RANDALL 

GIBSON; VINCENT GRECO; TERESA HARTEY-ADAMETZ; THOMAS LOWE; 

DAVID MCENRY; JENNIFER RICCA; ANITA SINGH; BRYAN UTTERBACK; 

PATRICK WEISE; LEAH HAMILTON; DENNIS FULTON; EBERHARD 

GROSSER; JOSEPH MILES, JR.; RICKY MCCRACKEN; THOMAS 

STURGIS; CHRISTOPHER SULLIVAN; MICHAEL RUSSELL; RANDALL 

STEWART; LAVERNE HOLMES; THOMAS DAVIDSON, JR.; SHANNON 

BOYD; ANTHONY DEAN, JR.; FRANCISCO NOGALES; JOHN GHETTI; 

GERALD DEXTER; CLAUDE REIHER; STEVEN MCBRIDE; PHILLIP 

RONDELLO; ROBERT MERRY,

Plaintiffs - Appellees,

v.

GEICO GENERAL INSURANCE COMPANY; GOVERNMENT EMPLOYEES 

INSURANCE COMPANY,

Defendants – Appellants, 

and

GEICO CORPORATION; GEICO INDEMNITY COMPANY; GEICO CASUALTY 

COMPANY; DOES 1-10; MICHAEL BROWN,

Defendants.
2

13-2149

SAMUEL CALDERON, individually and on behalf of other 

similarly situated individuals; MICHAEL HEADLEY; AARON 

KULSIC; KENNETH MILLER; MICHAEL CREAMER; GEORGE WOOD; ROBERT 

DEMARTINO; JOHN HALLIDAY; JAMES L. HANSON; THOMAS F. BRADY; 

DANA FERRIN; MAUREEN AYLING; CANDIDO CUBERO; THOMAS 

FITZGERALD; WILLIAM DOLINSKY; MARVIN HOURIGAN; DAVID 

MCCAMLEY; AUGUSTUS STANSBURY, JR.; JOAN BISCHOFF; RANDALL 

GIBSON; VINCENT GRECO; TERESA HARTEY-ADAMETZ; THOMAS LOWE; 

DAVID MCENRY; JENNIFER RICCA; ANITA SINGH; BRYAN UTTERBACK; 

PATRICK WEISE; LEAH HAMILTON; DENNIS FULTON; EBERHARD 

GROSSER; JOSEPH MILES, JR.; RICKY MCCRACKEN; THOMAS STURGIS; 

CHRISTOPHER SULLIVAN; MICHAEL RUSSELL; RANDALL STEWART; 

LAVERNE HOLMES; THOMAS DAVIDSON, JR.; SHANNON BOYD; ANTHONY 

DEAN, JR.; FRANCISCO NOGALES; JOHN GHETTI; GERALD DEXTER; 

CLAUDE REIHER; STEVEN MCBRIDE; PHILLIP RONDELLO; ROBERT 

MERRY,

Plaintiffs - Appellants,

v.

GEICO GENERAL INSURANCE COMPANY; GOVERNMENT EMPLOYEES 

INSURANCE COMPANY,

Defendants – Appellees,

and

GEICO CORPORATION; GEICO INDEMNITY COMPANY; GEICO CASUALTY 

COMPANY; DOES 1-10; MICHAEL BROWN,

Defendants.

Appeals from the United States District Court for the District 

of Maryland, at Greenbelt. Roger W. Titus, Senior District 

Judge. (8:10-cv-01958-RWT)

Argued: May 13, 2014 Decided: June 6, 2014
3

Before TRAXLER, Chief Judge, KING, Circuit Judge, and DAVIS, 

Senior Circuit Judge.

Appeals dismissed by published opinion. Chief Judge Traxler 

wrote the opinion, in which Judge King and Senior Judge Davis 

concurred.

ARGUED: Eric Hemmendinger, SHAWE & ROSENTHAL, LLP, Baltimore, 

Maryland, for Appellants/Cross-Appellees. Matthew Hale Morgan, 

NICHOLS KASTER, PLLP, Minneapolis, Minnesota, for 

Appellees/Cross-Appellants. ON BRIEF: Hyland Hunt, AKIN GUMP 

STRAUSS HAUER & FELD LLP, Washington, D.C., for 

Appellants/Cross-Appellees. Timothy C. Selander, NICHOLS 

KASTER, PLLP, Minneapolis, Minnesota, for Appellees/CrossAppellants.
4

TRAXLER, Chief Judge:

Government Employees Insurance Company and GEICO General 

Insurance Company (together, “GEICO”) appeal a district court 

order granting partial summary judgment against them on the 

issue of liability in an action asserting denial of overtime pay 

under the Fair Labor Standards Act (“FLSA”), see 29 U.S.C. § 201 

et seq. The plaintiffs cross-appeal an order granting partial 

summary judgment against them on several issues relating to the 

remedy to be awarded. Concluding that these appeals are 

interlocutory and we lack jurisdiction to consider them, we 

dismiss the appeals.

I.

GEICO is in the business of providing insurance. The 

plaintiffs in this matter are security investigators 

(“Investigators”) who currently work, or previously worked, for 

GEICO. The Investigators work in GEICO’s Claims Department 

primarily investigating claims that are suspected of being 

fraudulent. GEICO classifies its Investigators as exempt from 

the FLSA’s overtime pay protections. 

In 2010, the plaintiffs filed suit on behalf of a class 

seeking recovery of overtime pay they claimed GEICO wrongfully 

withheld in violation of the FLSA and New York state law. The 

complaint alleges that GEICO improperly classified the 

Investigator position as exempt from overtime under the FLSA and 
5

the law of New York. See 29 U.S.C. § 213(a); N.Y. Comp. Codes 

R. & Regs. tit. 12, § 142-2.2.. The complaint requests 

compensatory and liquidated damages, among other forms of 

relief. After the district court certified the class, the 

plaintiffs moved for partial summary judgment, and GEICO moved 

for summary judgment, on the issue of liability. The district 

court granted the plaintiffs’ motion and denied GEICO’s, 

rejecting as a matter of law GEICO’s contention that the 

Investigators fell within the FLSA’s “administrative function” 

exemption. See Calderon v. GEICO Gen. Ins. Co., 917 F. Supp. 2d 

428 (D. Md. 2012). 

The parties later filed cross-motions for summary judgment 

on several disputed remedy issues. Considering these motions, 

the court ruled that because GEICO acted in good faith, GEICO 

did not act willfully and thus the statute of limitations for 

plaintiffs’ claims extended only for two years. For similar 

reasons, the court also ruled that the plaintiffs were not 

entitled to liquidated damages or prejudgment interest. And 

finally, the court determined that because the plaintiffs were 

paid fixed salaries regardless of the varying number of hours 

they worked, the method of overtime described in Overnight Motor 

Transportation v. Missel, 316 U.S. 572 (1942), applied to this 

case. 
6

The district court then entered a “Stipulated Order 

Relating to Remedy” that it described as a “final judgment.” 

J.A. 109, 112. That order “contain[ed] a complete formula for 

the computation of backpay” based on the rulings that the court 

had made and the parties’ stipulations. J.A. 109. The order 

noted that both parties reserved the right to appeal the rulings 

of the district court underlying the order and that the order 

would “have no effect unless a judgment of liability is entered 

and sustained after all judicial review has been exhausted.” 

J.A. 109. The backpay formula that the order adopted would 

produce an amount of backpay to which each plaintiff was 

entitled depending upon the total pay received and the total 

time worked for each two-week pay period within the applicable 

limitations period. The order further stated that “[t]he 

backpay calculations will be performed by a mutually acceptable 

entity with right of review and confirmation by Defendants’ and 

Plaintiffs’ counsel.” J.A. 112. It also provided that the 

district court “shall have jurisdiction to resolve or supervise 

the resolution of any issue concerning the remedy that the 

parties are unable to resolve.” J.A. 111. There was no 

limitation on the right of either party to appeal the district 

court’s decisions.

GEICO has now appealed the district court’s order granting 

partial summary judgment to the plaintiffs on the issue of 
7

liability, and the plaintiffs have cross-appealed several of the 

district court’s rulings regarding remedy issues. 

II.

Before considering the merits of these appeals, we must 

determine whether we possess jurisdiction to do so. See Dickens 

v. Aetna Life Ins. Co., 677 F.3d 228, 229–30 (4th Cir. 2012). 

Because we conclude that we lack jurisdiction, we dismiss the 

appeals.

With certain limited exceptions, our appellate jurisdiction 

extends only to the review of “final decisions of the district 

courts of the United States.” 28 U.S.C. § 1291; see Cobbledick 

v. United States, 309 U.S. 323, 324-25 (1940); In re Carefirst 

of Md., Inc., 305 F.3d 253, 255 (4th Cir. 2002). The purpose of 

this rule “is to combine in one review all stages of the 

proceeding that effectively may be reviewed and corrected if and 

when final judgment results.” Cohen v. Beneficial Indus. Loan 

Corp., 337 U.S. 541, 546 (1949). “In the ordinary course a 

‘final decision’ is one that ends the litigation on the merits 

and leaves nothing for the court to do but execute the 

judgment.” Ray Haluch Gravel Co. v. Central Pension Fund of 

Int’l Union of Operating Eng’rs & Participating Emp’rs, 134 S. 

Ct. 773, 779 (2014). Accordingly, “a judgment on liability that 

does not fix damages is not a final judgment because the 

assessment of damages is part of the merits of the claim that 
8

must be determined.” Carolina Power & Light Co. v. Dynegy Mktg. 

& Trade, 415 F.3d 354, 358 (4th Cir. 2005), abrogated on other 

grounds by Ray Haluch Gravel Co., 134 S. Ct. at 779-80. On the 

question of whether an order is final, “[t]he label that a 

district court attaches to an order it issues does not control.” 

Id. 

The finality issue before us is akin to that presented in 

United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227 

(1958). In that case, the plaintiff sued the government seeking 

to recover for $7,189.59 in federal stamp taxes the plaintiff 

claimed were illegally collected from it and for interest on the 

taxes from the date they were paid. See id. at 228. The 

plaintiff later moved for summary judgment, and, after hearing 

the motion, the district court filed an opinion on April 14, 

1955, finding that the plaintiff had paid $ 7,012.50 in stamp 

taxes and $177.07 in interest but making no finding concerning 

on what date or dates those amounts were paid. See id. at 228-

29. The district court concluded by stating that the 

plaintiff’s summary judgment motion was granted. See id. at 

229. The court Clerk noted the granting of the motion on the 

docket on the same day. See id. Eventually, on May 24, 1955, 

the district court issued a formal document entitled “Judgment” 

that ordered that the plaintiff could recover from the United 

States $7,189.57 plus interest and costs, for a total of 
9

$7,769.37, and the Clerk entered this judgment on the docket the 

same day. See id.

On July 21, 1955, the government filed an appeal from the 

May 24, 1955, order. See id. at 230.1 The plaintiff filed a 

motion in the court of appeals to dismiss the appeal, 

maintaining that it had been taken outside the 60-day period 

that Federal Rule of Civil Procedure 73(a) allowed for the 

government to appeal an adverse judgment. See id. The 

plaintiff argued that the final judgment was entered on April 

14, not on May 24, and thus came too late. See id. The court 

of appeals agreed and dismissed the appeal. See id. The 

Supreme Court reversed, however. See id. at 236. As is 

relevant here, the Court noted that in an action seeking 

monetary damages, a judgment may be embodied in the opinion of 

the court but only if it “embodies the essential elements of a 

judgment for money and clearly evidences the judge’s intention 

that it shall be his final act in the case.” Id. at 232. The 

Court held that the April 14 opinion did not meet these 

requirements because it did not determine on what dates the 

plaintiff paid the taxes. See id. at 234. Without that 

 1

 Although the Supreme Court reported that the government’s 

notice of appeal identified the date of the entry of the order 

appealed from as May 25, 1955, rather than May 24, 1955, see

United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 230

(1958), that discrepancy is immaterial to the issues before us. 
10

determination, it could not be ascertained from the opinion the 

amount of interest to be added to the amounts the plaintiff had 

paid. See id. Accordingly, the Court concluded that the final 

judgment was entered on May 24, when the total amount to be 

recovered was determined. See id. at 234-36.

The order before us here is not final for similar reasons. 

It is true that the district court has completed its work on 

many of the issues that will eventually be used to determine the 

amount of damages to which each plaintiff is entitled. However, 

the order does not embody the essential elements of a money 

judgment because the court has not found all of the facts 

necessary to compute the amount of damages due; nor has it 

determined how the backpay formulas would apply to particular 

facts. See Buchanan v. United States, 82 F.3d 706, 707 (7th 

Cir. 1996) (per curiam) (holding that judgment was not final 

when “it failed to specify either the amount of money due the 

plaintiff or a formula by which the amount of money could be 

computed in mechanical fashion”); see also Associated Stores, 

Inc. v. Industrial Loan & Inv. Co., 313 F.2d 134, 137 (4th Cir. 

1963) (holding that there was no final judgment when the amount 

of damages depended upon the amount of money collected by one of 

the parties after a particular date on particular contracts but 

the district court did not specifically determine that amount). 

And while the district court’s order provides that initial
11

calculations will be performed by an entity acceptable to both 

the plaintiffs and GEICO, the parties have both retained the 

right to “review and confirm[]” those determinations and the 

district court has retained “jurisdiction to resolve or 

supervise the resolution of any issue concerning the remedy that 

the parties are unable to resolve.” J.A. 111, 112. Thus, it 

cannot be said of the order before us that it left nothing more 

for the district court to do than enforce a judgment. 

At oral argument, it was argued that Ram v. Paramount Film 

Distributing Corporation, 278 F.2d 191 (4th Cir. 1960) (per 

curiam), supports a conclusion that the order here is a final 

one. We disagree. The issue in that appeal, as in F. & M. 

Schaefer Brewing Co., concerned the timeliness of an appeal and 

depended on whether a particular order was final. In that case, 

motion picture distributors brought suit to recover certain 

moneys they claimed to be owed them by certain exhibitors of 

films. See id. at 192. The cases were referred to a Special 

Master so that he could take testimony and make factual findings 

and legal conclusions. See id. The Special Master eventually 

recommended that the plaintiffs were entitled to certain 

amounts, including interest at 3 percent per year from October 

1, 1958, until the date of the judgment. See id. After the 

district court overruled objections, the court on September 9, 

1959, ordered judgment in favor of the plaintiffs as per the 
12

Special Master’s recommendation. See id. And on September 10, 

1959, the Clerk of Court entered an order confirming the Special 

Master’s report. See id. Twenty days later, on September 30, 

1959, the plaintiffs submitted to the Clerk in each of the cases 

a document entitled “Final Judgment,” which set forth the 

damages each defendant or group of defendants owed each 

plaintiff with interest from the date of the judgment. See id. 

However, the calculations were incorrect insofar as the amounts 

included interest from October 1, 1958, to September 30, 1959, 

on the amounts the Special Master had found owing; this was 

erroneous because the Special Master’s calculations had already 

included interest up to October 1, 1958, so that the document 

submitted to the Clerk on September 30, 1959, “included interest 

on interest.” Id. The Clerk signed these documents and entered 

them on his docket on October 3, 1959. See id. They were not 

signed by the judge. See id.

We held that the judgment signed by the district judge on 

September 9, 1959, and entered by the Clerk on his docket the 

next day was the final judgment because, while it did not set 

out the total amount to be paid, that amount was determinable 

from the statement that a specific sum was due by each defendant 

with interest at 3 per cent from October 1, 1958. See id. at 

193-94. In so doing, we cited F. & M. Schaefer Brewing Co. for 

the rule that “a money judgment may not be deemed final unless 
13

it determines or specifies the means of determining the specific 

amount of recovery.” Id. at 193.

Ram is distinguishable from the present case, however. The 

critical fact in Ram was that the district court in its 

September 9, 1959, order had already found all the facts and 

resolved all questions of law necessary to determine the amount 

of recovery. All that remained was the ministerial act of 

performing the necessary calculations. See Republic Nat. Gas 

Co. v. Oklahoma, 334 U.S. 62, 68 (1948) (“[I]f nothing more than 

a ministerial act remains to be done . . ., the decree is 

regarded as concluding the case and is immediately 

reviewable.”). That simply is not true of the case before us, 

where any number of factual or legal issues might arise that 

will affect the amount of damages, as was reflected by the 

district court’s retention of jurisdiction to resolve any of the 

parties’ disputes regarding the damages determination. See id.

at 70 (noting that while simple application of a formula is 

ministerial, determinations “requir[ing] the exercise of 

judgment” are not). The district court’s work was not completed 

and the judgment thus was not final. 

With no final decision to review, we have no choice but to 

dismiss the appeals before us. “In a civil damage suit such as 

this, a judgment for the plaintiff that determines liability 

for, but does not fix the amount of, damages is appealable 
14

solely under 28 U.S.C. § 1292(b), which requires not only 

appropriate certification by the district court but also 

application within ten days to the Court of Appeals and that 

court’s grant, in its discretion, of permission to appeal.”2 

Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791 

(5th Cir. 1993). In this case, the district court did not 

attempt to certify under § 1292(b), and even had it done so, we 

would lack jurisdiction because there has been no timely 

application for leave to appeal. See id. Accordingly, we 

dismiss the appeals.

 2

 28 U.S.C. § 1292(b) provides:

When a district judge, in making in a civil action an 

order not otherwise appealable under this section, 

shall be of the opinion that such order involves a 

controlling question of law as to which there is 

substantial ground for difference of opinion and that 

an immediate appeal from the order may materially 

advance the ultimate termination of the litigation, he 

shall so state in writing in such order. The Court of 

Appeals which would have jurisdiction of an appeal of 

such action may thereupon, in its discretion, permit 

an appeal to be taken from such order, if application 

is made to it within ten days after the entry of the 

order: Provided, however, That application for an 

appeal hereunder shall not stay proceedings in the 

district court unless the district judge or the Court 

of Appeals or a judge thereof shall so order.

At oral argument the possibility was also discussed of

certifying the relevant issues under Rule 54(b). See Fed. R. 

Civ. P. 54(b). However, that rule is inapplicable here, as it 

pertains only to judgments that entirely dispose of one or more 

claims. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-

44 (1976).
15

III.

Concluding that we lack jurisdiction to consider the 

appeals before us, we dismiss.3

DISMISSED

 3

 We note that should the parties eventually appeal from a 

final judgment, we would entertain a motion to adopt the briefs 

and joint appendix from this appeal.