[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-14775

Non-Argument Calendar

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D.C. Docket No. 9:11-cv-80668-JMH

ROGERIO RODRIGUES, 

MARIO OLARTE, 

JESUS CASTILLO, 

 Plaintiffs-Appellees,

versus

CNP OF SANCTUARY, LLC., 

d.b.a. Positano Restaurant, 

PHILIP COSIMANO, JR.,

VINCENZO RUBINO, 

CIRO PERELLA, 

 Defendants-Appellants.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 12, 2013)

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Before CARNES, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM: 

The plaintiffs in this case filed a civil action under the Fair Labor Standards 

Act, 29 U.S.C. § 201 et seq., to recover unpaid overtime and minimum wage 

compensation that they were allegedly owed. The parties negotiated a settlement 

agreement and submitted it to the district court for approval in accordance with 

Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1355 (11th Cir. 1982), 

which broadly requires district courts to scrutinize proposed FLSA settlements to 

ensure that they are fair and reasonable. Upon review, the district court declined to 

approve the proposed settlement agreement based on a number of clauses which it 

found objectionable, particularly the agreement’s broad confidentiality provisions 

and expansive waivers of various legal claims. 

The district court certified its ruling for interlocutory appeal under 28 U.S.C. 

§ 1292(b), which permits certification where an otherwise non-appealable order 

“involves a controlling question of law as to which there is substantial ground for 

difference of opinion” and an immediate appeal “may materially advance the 

ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The court found 

“genuine confusion as to the correct legal standard to be applied in evaluating 

FLSA settlement agreements” and broadly identified the controlling issue of law as 

whether a district court may approve an FLSA settlement agreement that contains 

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confidentiality clauses and a general release of claims. An administrative panel of 

this Court, as further required by § 1292(b), granted the defendants’ petition to 

pursue an interlocutory appeal. 

An administrative panel’s decision to permit an interlocutory appeal, 

however, is subject to revocation by the merits panel designated to decide the case. 

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1253 (11th Cir. 2004). A merits 

panel of this Court may, in its discretion, decline to exercise jurisdiction under § 

1292(b), particularly where the controlling question of law is fact-intensive or 

involves a matter for the trial court’s discretion, or where its resolution will not 

serve to substantially reduce the amount of litigation left in the case. See id. at 

1258–59. And we decline to exercise our discretionary jurisdiction in this case. 

The defendants, like the district court, broadly ask us to clarify the standards 

that district courts should apply when scrutinizing FLSA settlement agreements for 

fairness under Lynn’s Food Stores. The defendants also ask us, in effect, to hold 

that a district court may not refuse to approve FLSA settlements as unreasonable 

based on non-monetary terms such as confidentiality provisions and general 

releases. District courts, however, are accorded discretion in deciding whether to 

approve settlement agreements, see e.g., Faught v. Am. Home Shield Corp., 668 

F.3d 1233, 1240 (11th Cir. 2011), and we are not inclined, at least at this time, to

interlocutorily consider cabining that discretion by imposing a categorical rule 

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regarding such non-monetary provisions, whatever their scope or content. Indeed, 

the discretion given to district courts in approving settlement agreements counsels 

against our exercising interlocutory jurisdiction in this case. See McFarlin, 381 

F.3d at 1258 (noting a distinction between “pure” questions of law, which will 

satisfy the requirements of § 1292(b), and “a question of fact or matter for the 

discretion of the trial court”) (quotation marks omitted) (emphasis added). 

More fundamentally, both parties have expressed a continued willingness to 

settle regardless of the outcome of this appeal. That means resolution of the legal 

questions presented in this appeal will not likely or “materially advance the 

ultimate termination of the litigation” by substantially reducing the amount of

litigation left in the case. See McFarlin, 381 F.3d at 1259 (quoting 28 U.S.C. § 

1292(b)). We therefore VACATE the administrative panel’s prior order granting 

permission to appeal in this case, DENY the defendants’ petition for permission to 

appeal, DISMISS this appeal, and REMAND to the district court for further 

proceedings.

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