United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2005 Decided May 26, 2006

No. 05-7046

CHRISTINE LINDSAY AND

ROBERT MCGRUDER, INDIVIDUALLY

AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED,

APPELLANTS

v.

GOVERNMENT EMPLOYEES INSURANCE COMPANY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 04cv01213)

Charles E. Tompkins argued the cause for the appellant.

Michael D. Hausfeld was on brief.

Eric Hemmendinger argued the cause for the appellee.

Bruce S. Harrison and Daniel A. Cantor were on brief.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.
2

1

 The FLSA requires an employer to pay an employee one-andone-half times his regular pay rate for work in excess of 40 hours per

week. See 29 U.S.C. § 207(a). It exempts from its overtime provision

“bona fide executive, administrative, or professional” employees. See

29 U.S.C. § 213(a)(1). The Act imposes a two-year statute of

limitations on wage and hour claims; the period is extended to three

years if the employer’s violation is “willful.” 29 U.S.C. § 255(a).

KAREN LECRAFT HENDERSON, Circuit Judge: Christine

Lindsay and Robert McGruder (appellants) work as auto damage

adjusters for the Government Employees Insurance Company

(GEICO). GEICO classified all auto damage adjusters as

administrative employees, thereby making them ineligible for

overtime pay under section 13(a)(1) of the Fair Labor Standards

Act, 29 USC §§ 201 et seq. (FLSA or Act). The appellants

brought this action against their employer, alleging that GEICO

deliberately miscategorized them as administrative employees

to avoid paying them overtime pay in violation of the FLSA and

the New York Minimum Wage Act, N.Y. Lab. Law §§ 650 et

seq. (New York Act). They sought certification of an “opt-in”

class under the FLSA. They also sought certification of an “optout” class under the New York Act, using Federal Rule of Civil

Procedure 23. The district court denied certification of the state

law class, concluding that the FLSA class certification

procedure requiring all class members to affirmatively opt in

precluded it from exercising supplemental jurisdiction over

those state law claimants who did not affirmatively join the

FLSA claim. We disagree and therefore reverse the order

denying certification and remand to the district court. 

I.

The appellants’ FLSA claim alleged not only that the nature

of an auto damage adjuster’s job duties entitles them to overtime

pay under FLSA but also that GEICO’s classification of auto

damage adjusters as administrative employees constitutes a

willful violation of the Act.1

 See 29 U.S.C. § 207(a). They sued
3

2

 Section 216(b) provides, inter alia: “An action to recover the

liability prescribed in either of the preceding sentences [expressly

including section 207 liability] may be maintained against any

employer (including a public agency) in any Federal or State court of

competent jurisdiction by any one or more employees for and in behalf

of himself or themselves and other employees similarly situated.”

3

 The Portal-to-Portal Act refers to employees’ “portal-to-portal”

activities—“the time spent by a workman in traveling from the

entrance to his employer’s property to his actual working place (as in

a mine) and in returning after the work shift,” Webster’s Third New

International Dictionary 1768 (1993). The Supreme Court had held

that these activities constituted “work” or part of the “workweek”

under the FLSA’s minimum wage and overtime provisions,

respectively. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

690-91 (1946); Armour & Co. v. Wantock, 323 U.S. 126 (1944); Tenn.

Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944).

The Portal-to-Portal Act provides elsewhere that an employer does not

incur liability for failing to pay minimum wages or overtime for an

employee’s portal-to-portal activities. See 29 U.S.C. § 252(a).

on behalf of themselves and all other similarly situated auto

damage adjusters under 29 U.S.C. § 216(b).2 Section 216(b) is

part of the so-called Portal-to-Portal Act, which the Congress

enacted in 1947 in response to judicial interpretations of the

FLSA.3 See IBP, Inc. v. Alvarez, 126 S. Ct. 514, 519 (2005). Of

particular relevance here, section 216(b) provides that, in an

action brought under, inter alia, section 207—the overtime pay

provision—of the FLSA, “[n]o employee shall be a party

plaintiff to any such action unless he gives his consent in writing

to become such a party and such consent is filed in the court in

which such action is brought.” 29 U.S.C. § 216(b). That is,

potential class members must affirmatively join (“opt in”) the

lawsuit. See Thompson v. Sawyer, 678 F.2d 257, 269 (D.C. Cir.

1982).
4

4

 By regulation, New York adopted the FLSA’s requirement that

an employer pay an employee time and one-half for overtime. The

regulation also excludes “bona fide executive, administrative, or

professional” employees. See N.Y. Comp. Codes R. & Regs. tit. 12,

§ 142-2.2. 

Appellant McGruder also alleged that the nature of a New

York-based auto damage adjuster’s job duties entitles those

adjusters to overtime pay under the New York Act as well. See

N.Y. Lab. Law §§ 663(1) (creating civil action for violation of

compensation provisions); N.Y. Comp. Codes R. & Regs. tit. 12,

§ 142-2.2 (requiring overtime compensation of time-and-onehalf).4

 McGruder sought to bring the state law claim on behalf

of himself and all other similarly situated New York-based auto

damage adjusters pursuant to Federal Rule of Civil Procedure

23. Unlike the procedure set out in 29 U.S.C. § 216(b), Rule 23

class certification requires notice to all potential class members

that they must affirmatively decline to join (“opt out”) the

lawsuit if they do not want to be class members. See Fed. R.

Civ. P. 23(c)(2)(B) (“For any class certified under Rule 23(b)(3),

the court must direct to class members the best notice

practicable under the circumstances . . . that the court will

exclude from the class any member who requests exclusion,

stating when and how members may elect to be excluded”); In

re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002) (“Certification

pursuant to Rule 23(b)(3), however, comes with certain

procedural requirements: Because members of a class seeking

substantial monetary damages may have divergent interests, due

process requires that putative class members receive notice and

an opportunity to opt out.”). 

The district court first determined that all GEICO auto

damage adjusters nationwide were similarly situated within the

meaning of 29 U.S.C. § 216(b). See Lindsay v. Gov’t Employees

Ins. Co., C.A. No. 04-1213 (D.D.C. Nov. 9, 2004).

Accordingly, notices were sent to all potential class members

requesting them to affirmatively opt into the action if they so
5

5 See infra p. 6.

6 See infra note 8.

desired. The district court, however, subsequently declined to

certify McGruder’s requested class of GEICO auto damage

adjusters with state law claims under the New York Act. See

Lindsay v. Gov’t Employees Ins. Co., 355 F. Supp. 2d 119

(D.D.C. 2004). First noting that “[t]his Circuit has yet to

address the question of supplemental jurisdiction in the context

of a federal opt-in class and a state opt-out class,” the district

court briefly surveyed the decisions from other courts—both

district and circuit—and ultimately concluded that “it would be

inappropriate to exercise jurisdiction over plaintiffs who have

not affirmatively opted into the federal action.” Id. at 120, 121.

Thus, it decided to exercise its supplemental jurisdiction over

only the state law claims “of plaintiff McGruder and any New

York plaintiff who is eligible to opt into the federal action and

opts in by filing a notice of consent.” Id. at 123. We allowed

the appellants to appeal the order denying class certification

pursuant to Federal Rule of Civil Procedure 23(f). See In re

Lindsay, No. 05-8001 (D.C. Cir. Mar. 18, 2005). Because

subject matter jurisdiction is a prerequisite to class certification,

it is properly reviewed in a Rule 23(f) interlocutory appeal. Cf.

In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98,

108 (D.C. Cir. 2002) (constitutional standing issue properly

raised in Rule 23(f) appeal). Accordingly, we consider the

district court’s denial of class certification based on its decision

not to exercise supplemental jurisdiction. 

II.

Although it is not clear from the district court order whether

the court made its supplemental jurisdiction ruling under 28

U.S.C. § 1367(a)5

 or 28 U.S.C. § 1367(c),6 we conclude that its

decision was based on subsection (a). First, its discussion of

certification of the state law claims does not mention subsection
6

(c). In contrast, its discussion regarding the exercise of its

supplemental jurisdiction over the state law claims of the FLSA

class members does. Lindsay, 355 F. Supp. 2d at 120-22.

Moreover, the authority upon which the district court primarily

relies construed section 1367(a) to divest federal courts of

subject-matter jurisdiction over state law claimants who do not

also have FLSA claims. Rodriguez v. The Texan, Inc., No. 01-

C-1478, 2001 WL 1829490, at *1-*2 (N.D. Ill. 2001). Because

the district court order was based on section 1367(a), we review

its decision de novo. See Harris v. Sec’y, Dep’t of Veterans

Affairs, 126 F.3d 339, 345-346 (D.C. Cir. 1997) (“We review

the District Court’s dismissal for want of jurisdiction de novo,

because the District Court dismissed on the grounds that it

lacked the original jurisdiction necessary for supplemental

jurisdiction under 28 U.S.C. § 1367(a), and not on the grounds

that it was exercising its discretion to dismiss supplemental

claims remaining after dismissal of original claims as authorized

by 28 U.S.C. § 1367(c)(3).”).

28 U.S.C. § 1367(a) provides: 

Except as provided in subsections (b) and (c) or

as expressly provided otherwise by Federal

statute, in any civil action of which the district

courts have original jurisdiction, the district

courts shall have supplemental jurisdiction over

all other claims that are so related to claims in

the action within such original jurisdiction that

they form part of the same case or controversy

under Article III of the United States

Constitution.

28 U.S.C. § 1367(a) (emphasis added). Leaving aside the

beginning proviso for the moment, we think it is clear that

section 1367(a) authorizes a district court to exercise its

supplemental jurisdiction in mandatory language. See New Rock

Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101
7

7 Subsection (c) provides:

The district courts may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or

claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has

original jurisdiction, or

F.3d 1492, 1509 (3d Cir. 1996) (“By its language § 1367(a)

confers jurisdiction in mandatory terms to include those cases

‘which form part of the same case or controversy under Article

III of the United States Constitution’ (except as expressly

excluded by statute or as provided for in subsections (b) and

(c)).”); McCoy v. Webster, 47 F.3d 404, 406 n.3 (11th Cir. 1995)

(“Section 1367(a) requires the district court to exercise

supplemental jurisdiction over claims which are closely related

to claims over which the district court has original jurisdiction.”

(emphasis added)); Executive Software N. Am. v. U.S. Dist. Ct.

for the Cent. Dist. of Cal., 24 F.3d 1545, 1555 (9th Cir. 1994)

(“By use of the word ‘shall,’ the statute makes clear that if

power is conferred under section 1367(a), and its exercise is not

prohibited by section 1367(b), a court can decline to assert

supplemental jurisdiction over a pendent claim only if one of the

four categories specifically enumerated in section 1367(c)

applies.”). In addition to its reference to subsection (b)’s

excepting provision (which relates to diversity jurisdiction only),

section 1367(a) includes three other bases for declining to

exercise supplemental jurisdiction: (1) a federal statute

“expressly provide[s] otherwise”; (2) the “other” claims are not

“so related” to the claims within the court’s original jurisdiction

that they constitute part of the same “case or controversy”; and

(3) the excepting provisions of section (c)(1)-(4), which allow

the court in its discretion to decline to exercise supplemental

jurisdiction.

7

 
8

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.

28 U.S.C. § 1367(c). 

First, we do not agree with the district court that 29 U.S.C.

§ 216(b) represents the kind of statute that is described in

section 1367(a)’s opening proviso. Section 1367(a) requires a

court to exercise supplemental jurisdiction, unless, inter alia,

“expressly provided otherwise by Federal statute.” 28 U.S.C. §

1367(a). While the United States Supreme Court has not yet

interpreted this exception, in Breuer v. Jim’s Concrete of

Brevard, Inc., 538 U.S. 691, 696-97 (2003), it has interpreted an

analogous provision in the removal statute. See 28 U.S.C. §

1441(a). Section 1441(a) permits the removal of a case over

which the district court has original jurisdiction “[e]xcept as

otherwise expressly provided by Act of Congress.” In Breuer,

the Court warned against reading the term “expressly” out of the

proviso. 538 U.S. at 696-97. There, the plaintiff argued that the

word “maintain[ ]” in section 216(b)’s provision that “[a]n

action [to recover overtime pay under section 207 of FLSA] may

be maintained . . . in any Federal or State court” prohibited the

defendant from removing the action to federal court. Id. at 694.

The Court found that “[n]othing on the face of 29 U.S.C. §

216(b) looks like an express prohibition of removal, there being

no mention of removal, let alone of prohibition.” Id.

Ultimately, the Court decided that “maintain[ ]” was too

ambiguous to prohibit removal and rejected the plaintiff’s

argument “that any text, even when ambiguous, that might be

read as inconsistent with removal is an ‘express’ prohibiting

provision under the statute.” Id. at 695. Likewise with section

216(b)’s relation to section 1367(a)—not only does section

216(b) not expressly prohibit the exercise of supplemental

jurisdiction over the state law claims of opt-out class members,

it includes no mention of supplemental jurisdiction at all. See
9

8

 The Violence Against Women Act provides in part that section

1367 does not “confer on the courts of the United States jurisdiction

over any State [domestic] law claim.” 42 U.S.C. § 13981(e)(4). In

United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court

invalidated (on Commerce Clause grounds) the Violence Against

Women Act. Nonetheless, section 13981(e)(4) illustrates that if the

Congress intends to divest federal courts of supplemental jurisdiction,

it does so expressly—as section 1367(a) requires.

Breuer, 538 U.S. at 694-95 (section 216(b) does not prohibit

removal, in part because removal is not mentioned). 

The portion of section 216(b) relevant to supplemental

jurisdiction states, “No employee shall be a party plaintiff to any

such action unless he gives his consent in writing to become

such a party and such consent is filed in the court in which such

action is brought,” 29 U.S.C. § 216(b) (emphasis added).

GEICO argues that section 216(b)’s use of the term

“action”—as opposed to “claim” or “cause of

action”—manifests that the Congress intended to require optingin for the entire litigation, not merely the FLSA claims. We are

not persuaded by this argument. Even assuming GEICO’s

interpretation of section 216(b) is correct, the term “action” does

not meet section 1367(a)’s requirement of an “express[ ]”

prohibition. GEICO’s argument is precisely the sort of “verbal

hook” the Court rejected in Breuer. 538 U.S. at 696. Our

conclusion is also supported by other legislation in which the

Congress has expressly prohibited federal courts from exercising

supplemental jurisdiction over state law claims.8

 See Breuer,

538 U.S. at 696 (“The need to take the express exception

requirement seriously is underscored by examples of

indisputable prohibitions . . . in a number of other statutes.”); cf.

Dir. of Revenue of Mo. v. CoBank ACB, 531 U.S. 316, 325

(2001) (“Had Congress intended to confer upon banks for

cooperatives the more comprehensive exemption from taxation

that it had provided to farm credit banks and federal land bank
10

9 Because Exxon Mobil involved diversity jurisdiction, the Court

also considered the section 1367(b) exception which applies only to

diversity jurisdiction. It went on to conclude that section 1367(b) did

not “withhold[ ] supplemental jurisdiction over the claims of plaintiffs

permissively . . . certified as class-action members pursuant to Rule

23.” Exxon Mobil, 125 S. Ct. at 2621.

associations, it would have done so expressly as it had done

elsewhere in the Farm Credit Act.”).

Second, we consider GEICO’s argument that the state law

claims (brought under the New York Act) are not part of the

same case or controversy as the FLSA claims. In Exxon Mobil

Corp. v. Allapattah Services, Inc., 125 S. Ct. 2611 (2005), the

United States Supreme Court recently held that “where the other

elements of jurisdiction are present and at least one named

plaintiff in the action satisfies the amount-in-controversy

requirement, § 1367 does authorize supplemental jurisdiction

over the claims of other plaintiffs in the same Article III case or

controversy, even if those claims are for less than the

jurisdictional amount specified in the statute setting forth the

requirements for diversity jurisdiction.” Id. at 2615. With

respect to the exercise of supplemental jurisdiction, we find the

Exxon Mobil holding instructive, if not controlling, here. In

both, not all of the plaintiffs could invoke the district court’s

original jurisdiction and the remaining plaintiffs—with state law

claims—were before the court, if at all, under its supplemental

jurisdiction. The fact that Exxon Mobil is a diversity jurisdiction

action, see 28 U.S.C. § 1332, and this litigation invokes federal

question jurisdiction, see 28 U.S.C. § 1331, is of no moment

here.9

 Section 1367(a) is written in terms of “any civil action of

which the district courts have original jurisdiction” and thus it

encompasses both diversity jurisdiction and federal question

jurisdiction actions. In Exxon Mobil, the Court had before it the

decisions of two courts of appeal reaching different results. Id.

at 2615. In one appeal, the plaintiffs attempted to bring a

diversity class action in which some of the plaintiffs’ claims met
11

the amount-in-controversy requirement of section 1332 and

some did not. Id. at 2616. The Eleventh Circuit had upheld the

district court’s exercise of supplemental jurisdiction over the

claims of those plaintiffs who did not meet the requirement. Id.

The other appeal involved a diversity personal injury lawsuit in

which only some of the plaintiffs (all members of one family)

met the amount-in-controversy requirement. Id. The First

Circuit had affirmed the district court’s decision not to exercise

supplemental jurisdiction over the family members who did not

meet the requirement. Id. The Supreme Court sided with the

Eleventh Circuit, holding that section 1367 allowed the exercise

of supplemental jurisdiction over those plaintiffs who did not

meet the amount-in-controversy requirement provided at least

one plaintiff met the requirement. Id. at 2625. The Court

declared:

If the court has original jurisdiction over a single

claim in the complaint, it has original

jurisdiction over a “civil action” within the

meaning of § 1367(a), even if the civil action

over which it has jurisdiction comprises fewer

claims than were included in the complaint.

Once the court determines it has original

jurisdiction over the civil action, it can turn to

the question whether it has a constitutional and

statutory basis for exercising supplemental

jurisdiction over the other claims in the action.

Id. at 2620-21. We interpret this language to mean that so long

as the district court has original jurisdiction over a single claim,

it may exercise supplemental jurisdiction over any additional

claim that forms part of the same Article III case or controversy.

A federal claim and a state law claim form part of the same

Article III case or controversy if the two claims “derive from a

common nucleus of operative fact” such that “the relationship

between [the federal] claim and the state claim permits the
12

10 To state the obvious, Rule 23 does not fit section 1367(a)’s

“[f]ederal statute” exception. 

conclusion that the entire action before the court comprises but

one constitutional ‘case.’ ” Chicago v. Int’l Coll. of Surgeons,

522 U.S. 156, 164-165 (1997) (quoting United Mine Workers v.

Gibbs, 383 U.S. 715, 725 (1966)) (alteration in original). Here,

the complaint alleged that members of both classes performed

the same type of work for the same employer and were deprived

of overtime compensation as a result of the same action taken by

their employer. It is clear to us that the two claims “derive from

a common nucleus of operative fact” and thus form part of the

same Article III case or controversy. See Lyon v. Whisman, 45

F.3d 758, 761 (3d Cir. 1995) (where “the same acts violate

parallel federal and state laws, the common nucleus of operative

facts is obvious”); see also Pueblo Int’l, Inc. v. De Cardona, 725

F.2d 823, 826 (1st Cir. 1984) (supplemental jurisdiction

properly exercised over state claims where original jurisdiction

existed under parallel federal law because “[t]he facts necessary

to prove a violation of one are practically the same as those

needed to prove a violation of the other”).

In addition, GEICO argues that there is a conflict between

the opt-in procedure under section 216(b) and the opt-out

procedure under Rule 23(c)(2)(B). While there is

unquestionably a difference—indeed, an opposite

requirement—between opt-in and opt-out procedures, we doubt

that a mere procedural difference can curtail section 1367’s

jurisdictional sweep.10 Regardless of any policy decision

implicit in section 216(b)’s opt-in requirement, see DeAsencio

v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir. 2003)

(“[M]andating an opt-in class or an opt-out class is a crucial

policy decision. Congress has selected an opt-in class for FLSA

actions.”), in enacting section 1367(a), the Congress made its

intent regarding the exercise of supplemental jurisdiction clear:

“Congress conferred a broad grant of jurisdiction upon the
13

11 The district court’s decision to exercise supplemental

jurisdiction over the state law claims of only those claimants who also

opted into the FLSA claim is thus unlike the holding in DeAsencio v.

Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003). In DeAsencio, the

plaintiffs asserted both FLSA claims and Pennsylvania state law

claims. Id. at 301. The Third Circuit found that the state law claims

predominated over the FLSA claims and that they were novel and

complex, using the language of section 1367(c)(1) and (2). Id. at 311.

First, it stated, the state claims required proof of an implied contract

between the employer, Tyson, and its employees, thereby requiring

substantial “additional testimony and proof . . . beyond that required

district courts, indicating a congressional desire that,

‘supplemental jurisdiction at least in the first instance . . . go to

the constitutional limit, to which it appeared to be carried in . . .

[United Mine Workers v. Gibbs, 383 U.S. 715 (1966)].’ ” In re

Walker, 51 F.3d 562, 571-72 (5th Cir. 1995) (quoting Rodriguez

v. Pacificare of Tex., 980 F.2d 1014 (5th Cir. 1993), cert.

denied, 508 U.S. 956 (1993)) (concluding section 1367 does not

confer supplemental jurisdiction on bankruptcy court)

(alterations in original).

Although, based on the foregoing discussion, we reverse the

district court’s denial of class certification to the state law

claimants who did not also opt into the FLSA claim and remand

for further proceedings, we emphasize that on remand the

district court remains free to consider whether it “may decline

to exercise” supplemental jurisdiction under 28 U.S.C. §

1367(c). Its ability to decline to exercise supplemental

jurisdiction over the claims of those class members with state

law claims only, however, is circumscribed. In declining to

exercise supplemental jurisdiction, it did not rely on section

1367(c)(1)-(4) and, we think, with good reason. First, as the

district court noted, the state law claims are not novel or

complex under section 1367(c)(1). Lindsay, 355 F. Supp. 2d at

122. It also concluded that the state law claims would not

predominate over the FLSA claims under section 1367(c)(2).11
14

for the FLSA action.” Id. at 310. Second, the court found that the size

disparity between the two classes “may constitute substantial

predomination by the state . . . action.” Id. Finally, the court noted

that the state claim involved “novel and complex issues of state law”

absent in the federal action. Id. at 311. It concluded that exercising

supplemental jurisdiction in those circumstances would render the

FLSA claim “an appendage to the more comprehensive state action”

and therefore disallowed the exercise of supplemental jurisdiction. Id.

at 312.

12 If “state issues substantially predominate, whether in terms of

proof, of the scope of the issues raised, or of the comprehensiveness

of the remedy sought, the state claims may be dismissed without

prejudice and left for resolution to state tribunals.” Gibbs, 383 U.S.

at 726-27. Some courts, including the DeAsencio court, have

concluded that “the disparity in numbers of similarly situated plaintiffs

may be so great that it becomes dispositive.” DeAsencio, 342 F.3d at

311. The correctness of this interpretation aside, we believe it is

inapplicable here where the two classes are almost identical in size.

At the time of briefing, approximately 204 claimants had filed

consents to opt into the FLSA claim, see Appellants’ Br. 3, and the

district court estimated the state law claimants to number

approximately 228, see Lindsay, 355 F. Supp. 2d at 121. 

Id. Predomination under section 1367(c)(2) relates to the type

of claim and here the state law claims essentially replicate the

FLSA claims—they plainly do not predominate.12 On remand,

the district court may consider whether “exceptional

circumstances” exist and whether “there are other compelling

reasons for declining jurisdiction” under section 1367(c)(4). In

determining whether there are “other compelling reasons,” the

district court must balance “economy, convenience, fairness, and

comity,” as the Supreme Court instructed in Gibbs. CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (citing Gibbs,

383 U.S. at 726-27). It may not, however, use subsection (c)(4)

to conclude that section 216(b)’s opt-in provision ousts the court

of supplemental jurisdiction over the state law class of those
15

claimants who have not joined the FLSA claim. We do not view

the difference between the opt-in procedure provided by section

216(b) for FLSA claims and the opt-out procedure for state law

claims provided by Rule 23 as fitting the “exceptional

circumstances”/“other compelling reasons” language of section

1367(c)(4). 

For the foregoing reasons, we reverse the district court’s

denial of class certification to those state law claimants who did

not join the FLSA claim and remand for further proceedings

consistent with this opinion.

So ordered.