United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2022 Decided July 18, 2023

No. 22-7033

ISAAC HARRIS, ET AL.,

APPELLEES

v.

MEDICAL TRANSPORTATION MANAGEMENT, INC.,

APPELLANT

v.

STAR TRANSPORTATION LLC, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-01371)

Jean-Claude André argued the cause for appellant. With 

him on the briefs were John J. Hathway, Darci F. Madden, and 

William F. Ryan.

Jennifer B. Dickey, Gilbert C. Dickey, and Jessica L. 

O’Brien were on the brief for amicus curiae the Chamber of 

Commerce of the United States of America in support of 

appellant.
2

William M. Jay and David J. Zimmer were on the brief for 

amicus curiae Prof. Joan Steinman in support of appellant.

Michael T. Kirkpatrick argued the cause for appellees. 

With him on the brief were Joseph M. Sellers, Harini 

Srinivasan, and Wendy Liu.

Robert H. Klonoff, Elizabeth J. Cabraser, and Samuel 

Issacharoff, pro se, were on the brief for amici curiae Robert 

H. Klonoff, Elizabeth J. Cabraser, and Samuel Issacharoff, in 

support of appellees as to Rule 23(c)(4) standard.

Before: MILLETT and CHILDS, Circuit Judges, and 

ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Isaac Harris, Darnell Frye, and 

Leo Franklin work as non-emergency medical transportation 

drivers. In July 2017, they brought a putative class action and 

Fair Labor Standards Act collective action against Medical 

Transportation Management, Inc. (“MTM”). Their complaint 

alleged that MTM is their employer and had failed to pay them 

and its other drivers their full wages as required by both federal 

and District of Columbia law.

MTM now appeals the district court’s certification of an

“issue class” under Federal Rule of Civil Procedure 23(c)(4),

and its denial of MTM’s motion to decertify plaintiffs’ Fair 

Labor Standards Act collective action. We remand the district 

court’s certification of the issue class because the court failed 

to ensure that it satisfies the class-action criteria specified in 

Rule 23(a) and (b). We decline to exercise pendent appellate 

jurisdiction to review the district court’s separate decision on 

the Fair Labor Standards Act collective action.
3

I

A

Federal Rule of Civil Procedure 23 governs class action 

litigation in the federal courts. Rule 23(a) sets out the threshold

criteria for eligibility as a class action, which are that (1) the 

proposed class be “so numerous that joinder of all members is 

impracticable”—the numerosity requirement; (2) class 

members’ claims share common questions of law or fact—the 

commonality requirement; (3) the claims or defenses of the 

named representative parties be typical of all class members—

the typicality requirement; and (4) the representative parties be 

capable of providing adequate representation to the whole 

class—the adequacy of representation requirement. FED. R.

CIV. P. 23(a)(1)–(4). 

In addition to meeting those four prerequisites, Rule 23(b) 

provides that a proposed class must also qualify as one of three 

specified “types of class actions.” FED. R. CIV. P. 23(b)(1)–(3)

(formatting modified); see Amchem Prods., Inc. v. Windsor, 

521 U.S. 591, 614 (1997). 

Rule 23(b)(1) defines the first type of class action as 

applying when there are multiple claims arising out of the same 

subject matter and the prosecution of separate actions by or 

against individual class members “would create a risk of” 

either “inconsistent or varying” judgments establishing 

“incompatible standards of conduct” for the party opposing the 

class. FED. R. CIV. P. 23(b)(1). A class can also proceed under 

Rule 23(b)(1) if resolution of individual class members’ claims 

would, “as a practical matter” dispose of the interests of the 

non-party members of the class, or “would substantially impair 

or impede their ability to protect their interests[.]” Id. 
4

Rule 23(b)(2) identifies a second type of class action, 

which may be maintained if the party opposing the class “has 

acted or refused to act on grounds that apply generally to the 

class,” so that “final injunctive relief or corresponding 

declaratory relief” would be appropriate to resolve all class 

claims. FED. R. CIV. P. 23(b)(2). 

Finally, a Rule 23(b)(3) class action can be maintained 

when “questions of law or fact common to class members 

predominate over any questions affecting only individual 

members,” and “a class action is superior to other available 

methods for fairly and efficiently adjudicating the 

controversy.” FED. R. CIV. P. 23(b)(3). 

Other parts of Rule 23 set out the procedural and 

operational requirements of a class action. For example, upon 

certifying a class action, the district court “must define the class 

and the class claims, issues, or defenses[.]” FED. R. CIV. P. 

23(c)(1)(B). Also, for any class certified under Rule 23(b)(3), 

the district court is required to provide class members “the best 

notice that is practicable under the circumstances, including 

individual notice to all members who can be identified through 

reasonable effort.” FED. R. CIV. P. 23(c)(2)(B). The notice 

requires, among other things, a statement informing class 

members of their right to opt out of the action and thereby to 

maintain their ability to pursue any action individually. FED.

R. CIV. P. 23(c)(2)(B)(v) (“The notice must clearly and 

concisely state in plain, easily understood language * * * that 

the court will exclude from the class any member who requests 

exclusion[.]”); see also, e.g., FED. R. CIV. P. 23(e), (g). 

In addition to all of those mandatory class-action 

requirements, Rule 23 has permissive provisions concerning 

the district court’s management of class litigation. This case 

concerns the application of one of them, Rule 23(c)(4), which 
5

provides: “When appropriate, an action may be brought or 

maintained as a class action with respect to particular issues.” 

FED. R. CIV. P. 23(c)(4). 

This appeal asks us to decide what role Rule 23(c)(4) plays 

in class certification decisions and, in particular, whether a 

Rule 23(c)(4) issue class must also meet the Rule 23(a) and (b)

class action requirements.

B

1

Non-emergency medical transportation services are used 

by individuals who receive Medicaid and lack transportation 

for their medical appointments. MTM contracts with the 

District of Columbia to provide District residents with such

services. To fulfill those contracts, MTM engages dozens of 

subcontractors.

Plaintiffs Harris, Frye, and Franklin (collectively,

“Drivers”) are non-emergency medical transportation drivers 

in the District of Columbia. The Drivers allege that while they

and hundreds of other drivers were working for MTM and its 

subcontractors, MTM failed to pay their legally mandated 

wages under federal and District law. They allege that they and 

the other drivers routinely started work between 5:00 a.m. and

7:00 a.m., and worked until between 5:00 p.m. and 8:00 p.m. 

Nevertheless, the Drivers were paid a flat rate for driver 

services that “regularly fell below” the legally required

“minimum wage and the living wage rates” and omitted 

overtime wages. Compl. at 9–10, J.A. 40–41. 

The Drivers brought suit against MTM under the Fair 

Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), under 
6

District of Columbia wage-and-hour laws, see D.C. Code § 32-

1001 (Minimum Wage Act); id. § 2-220.01 et seq. (Living 

Wage Act); id. § 32-1302 (Wage Payment and Collection 

Law), and for common-law breach of contract. As required to 

state a claim under those causes of action, the Drivers’ 

complaint alleged that MTM was an employer of the Drivers 

under federal law and a general contractor under District law. 

Whether MTM is either an employer or a general 

contractor with respect to the Drivers is a threshold question of 

liability for MTM. If MTM is deemed the employer of the 

plaintiffs, or a joint employer with its subcontractors, MTM

may be held liable under both the FLSA and District law. And 

if it is a “general contractor,” that status would separately 

subject it to strict liability for violations of District law by its 

subcontractors. See Harris v. Medical Transp. Mgmt., Inc., 300 

F. Supp. 3d 234, 246 (D.D.C. 2018) (“Harris I”). But if, as 

MTM argues, it neither employed nor acted as a general 

contractor in relation to the Drivers, it cannot be liable for any 

underpayment of wages. In that case, the subcontractors MTM 

engaged and to which the Drivers directly reported would be

the only proper defendants.

2

MTM moved to dismiss the complaint in its entirety. The 

district court granted the motion as to the Drivers’ commonlaw breach of contract claim, but denied it as to the Drivers’ 

claims under federal and District statutory law. Harris I, 300 

F. Supp. 3d at 237. Then the district court granted the Drivers’ 

motion for conditional certification of an FLSA collective

action, approved the Drivers’ proposed collective action notice, 

and equitably tolled the limitations period for members of the 

collective action. See Harris v. Medical Transp. Mgmt., Inc., 

317 F. Supp. 3d 421, 423–424 (D.D.C. 2018) (“Harris II”).
7

The Drivers subsequently filed a motion to certify a class

action under Rule 23(b)(3) for the non-FLSA claims. The 

district court denied the motion. Harris v. Medical Transp. 

Mgmt., Inc., No. 17 Civ. 01371, 2020 WL 5702085 (D.D.C. 

Sept. 24, 2020) (“Harris III”). The district court found that the 

proposed class action met the requirements of Rule 23(a), and 

the superiority requirement of Rule 23(b)(3)—that is, it found 

that a class action would be “superior to other available 

methods for fairly and effectively adjudicating the 

controversy[,]” FED. R. CIV. P. 23(b)(3). Harris III, 2020 WL 

5702085, at *4–7. The district court also found that the 

question of whether MTM was, with its subcontractors, a joint 

employer of the putative class members “meets the 

predominance requirement of Rule 23(b)(3)” because evidence 

common to the class would be used to resolve it. Id. at *9.

But the district court held that individualized evidence 

would be required to assess whether MTM’s payment system 

was responsible for the underpayment of wages, given 

“numerous metrics that would be relevant to assessing MTM’s 

liability as to each class member.” Harris III, 2020 WL

5702085, at *9. Accordingly, because the evidence common 

to the putative class as a whole did not predominate over such 

individual considerations, the district court declined to certify 

a class under Rule 23(b)(3). Id. at *12. The district court also 

denied without prejudice the Drivers’ motion in the alternative 

to certify an issue class under Rule 23(c)(4). Id. at *13.

Following supplemental briefing, the district court granted 

in part the Drivers’ renewed motion to certify issue classes

under Rule 23(c)(4). Harris v. Medical Transp. Mgmt., Inc., 

No. 17 Civ. 01371, 2021 WL 3472381, at *1 (D.D.C. Aug. 6, 

2021) (“Harris IV”). The district court certified one issue class, 

defining that class as encompassing the two questions of (1) 
8

whether MTM is a joint employer of the putative class 

members; and (2) whether MTM is a general contractor under 

D.C. law, and thereby strictly liable for any wage law 

violations committed by its subcontractors. Id. at *9. The 

district court reasoned that certifying an issue class for those 

two issues would “materially advance the litigation” because, 

if MTM is neither a joint employer nor a general contractor, it 

will not be liable in the lawsuit for any claims. Id. (citation 

omitted). But if MTM meets one or both of those definitions, 

the Drivers will have established a critical component of their

case. Id.; see also Harris III, 2020 WL 5702085, at *6. The 

district court also noted that the Drivers would rely on evidence 

common to all proposed class members to attempt to prove that 

MTM is a joint employer or a general contractor. Harris IV, 

2021 WL 3472381, at *9.

In the same opinion, the district court denied MTM’s 

motion to decertify the plaintiffs’ FLSA collective action. A 

collective action under the FLSA requires the members to be 

“similarly situated.” 29 U.S.C. § 216. That term is not defined 

by the FLSA. Because our circuit has not yet established a 

standard for “similarly situated,” the district court applied a test 

from the Second and Ninth Circuits, which asks whether “party 

plaintiffs [are] alike with regard to some material aspect of 

their litigation.” Harris IV, 2021 WL 3472381, at *3 (quoting 

Campbell v. City of Los Angeles, 903 F.3d 1090, 1113–1114

(9th Cir. 2018)) (emphasis in Campbell; alteration in Harris); 

see also Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 

515–522 (2d Cir. 2020), cert. dismissed, 142 S. Ct. 639 (2021). 

The district court then determined that the collective members 

were similarly situated with respect to the question of whether 

MTM is their joint employer and, because that inquiry is a 

material aspect of the litigation, the court denied MTM’s 

motion to decertify the collective action. Harris IV, 2021 WL 

3472381, at *6–7.
9

3

After filing a petition for leave to file an interlocutory 

appeal under Rule 23(f) in this court, see In re Medical Transp. 

Mgmt., Inc., No. 21-8006, MTM also moved the district court 

to certify the FLSA decision for interlocutory review under 28 

U.S.C. § 1292(b) and to stay proceedings pending the appeal. 

The district court denied both motions. Harris v. Medical

Transp. Mgmt., Inc., No. 17 Civ. 01371, 2021 WL 5446829, at 

*1 (D.D.C. Nov. 22, 2021) (“Harris V”).

This court subsequently granted MTM’s petition to file an 

appeal of the class certification decision and directed the 

parties to address whether we should also exercise pendent 

appellate jurisdiction over the FLSA decision. In re Medical 

Transp. Mgmt., Inc., No. 21-8006, 2022 WL 829169, at *1 

(D.C. Cir. March 17, 2022).

II

The district court had jurisdiction over this action under 28 

U.S.C. § 1331 and § 1367. We have jurisdiction to consider

MTM’s interlocutory appeal of the district court’s class 

certification order under 28 U.S.C. § 1292(e). We decline, 

though, to exercise pendent appellate jurisdiction to review the 

district court’s denial of FLSA decertification.

III

While interlocutory appeals are generally disfavored, Rule 

23(f) provides that “[a] court of appeals may permit an appeal 

from an order granting or denying class-action certification” 

under Rule 23. FED. R. CIV. P. 23(f). An appeal will generally 

be warranted “when: (1) ‘there is a death-knell situation for 
10

either the plaintiff or defendant[,]’ in that the class-certification 

decision will effectively end the party’s ability to litigate; (2) 

‘the certification decision presents an unsettled and 

fundamental issue of law relating to class actions, important 

both to the specific litigation and generally, that is likely to 

evade end-of-the-case review;’ or (3) ‘the district court’s class 

certification decision is manifestly erroneous.’” In re White, 

64 F.4th 302, 307 (D.C. Cir. 2023) (alteration in original) 

(quoting In re Lorazepam & Clorazepate Antitrust Litig., 289 

F.3d 98, 105 (D.C. Cir. 2002)). 

Applying those factors, we hold that interlocutory review

of the class certification decision is appropriate in this case. 

The district court’s decision to certify an issue class “‘presents 

an unsettled and fundamental issue of law relating to class 

actions’ that is ‘important’ and ‘likely to evade end-of-the-case 

review[.]’” In re Medical Transp. Mgmt., Inc., 2022 WL 

829169, at *1 (quoting Lorazepam, 289 F.3d at 99–100). More 

specifically, the question of under what conditions a Rule 

23(c)(4) “issue class” can be certified when no lawsuit or cause 

of action has been certified as a class is an “unsettled and 

fundamental issue of law relating to class actions, important 

both to the specific litigation and generally[.]” See Lorazepam, 

289 F.3d at 105. This court has not yet addressed that question. 

Cf. In re Johnson, 760 F.3d 66, 75 (D.C. Cir. 2014) 

(recognizing “a controversy over the proper use of issue 

classes,” but declining to review “the district court’s 

determination of how best to manage the issues before it” 

because “the appropriate use of an issue class was not raised or 

briefed”); In re Brewer, 863 F.3d 861, 875–876 (D.C. Cir. 

2017) (finding no “manifest error” in district court’s failure to 

“certif[y] a Rule 23(c)(4) issue class on liability alone”). 

Other circuits have applied Rule 23(c)(4) in a variety of 

ways. See, e.g., In re Nassau County Strip Search Cases, 461 
11

F.3d 219, 226–227 (2d Cir. 2006) (“[A] court may employ 

subsection (c)(4) to certify a class as to liability regardless of 

whether the claim as a whole satisfies Rule 23(b)(3)’s 

predominance requirement.”); Russell v. Educational Comm’n 

for Foreign Med. Graduates, 15 F.4th 259, 269–270 (3d Cir. 

2021) (“[D]istrict courts may certify ‘particular issues’ for 

class treatment even if those issues, once resolved, do not 

resolve a defendant’s liability, provided that such certification 

substantially facilitates the resolution of the civil dispute, 

preserves the parties’ procedural and substantive rights and 

responsibilities, and respects the constitutional and statutory 

rights of all class member[s] and defendants.”), cert. denied, 

142 S. Ct. 2706 (2022); Gunnells v. Healthplan Servs., Inc., 

348 F.3d 417, 438–446 (4th Cir. 2003); id. at 441

(“[S]ubsection 23(c)(4) should be used to separate one or more 

claims that are appropriate for class treatment, provided that 

within that claim or claims (rather than within the entire lawsuit 

as a whole), the predominance and all other necessary 

requirements of subsections (a) and (b) of Rule 23 are met.”)

(internal quotation marks omitted); Castano v. American

Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996) (“The 

proper interpretation of the interaction between subdivisions 

(b)(3) and (c)(4) is that a cause of action, as a whole, must 

satisfy the predominance requirement of (b)(3) and that (c)(4) 

is a housekeeping rule that allows courts to sever the common 

issues for a class trial.”); Martin v. Behr Dayton Thermal 

Prods. LLC, 896 F.3d 405, 413 (6th Cir. 2018) (“Rule 23(c)(4) 

contemplates using issue certification to retain a case’s class 

character where common questions predominate within certain 

issues and where class treatment of those issues is the superior 

method of resolution.”); McReynolds v. Merrill Lynch, Pierce, 

Fenner & Smith, Inc., 672 F.3d 482, 491–492 (7th Cir. 2012)

(Rule 23(c)(4) issue class could be used to resolve only a 

disparate impact issue); cf. Valentino v. Carter-Wallace, Inc., 

97 F.3d 1227, 1234 (9th Cir. 1996) (“Even if the common 
12

questions do not predominate over the individual questions so 

that class certification of the entire action is warranted, Rule 23 

authorizes the district court in appropriate cases to isolate the 

common issues under Rule 23(c)(4)(A) and proceed with class 

treatment of these particular issues.”) (citing the earlier version 

of Rule 23(c)(4)).1

 

Given the variety of approaches and the frequency with 

which the certification of issue classes arises, the propriety of 

the court’s issue-class certification decision in this case

presents “an important, recurring, and unsettled question of 

class action law.” See In re White, 64 F.4th at 310.

In addition, the question of when issue classes can be 

certified is likely to evade end-of-the-case review. That would 

happen, for example, if the district court holds that MTM is 

neither an employer nor a general contractor, resolving this 

case on the merits in MTM’s favor. MTM might lack any 

remaining injury from the class certification decision at that 

point and so be unable or unlikely to seek review of the 

question. Likewise, even if MTM is found to be a joint 

employer or a general contractor, it could prevail on the merits, 

resolving the suit in its favor. That too would make end-ofcase review unlikely. 

For those reasons, we find it appropriate to exercise our 

discretion to entertain this interlocutory appeal. See In re 

White, 64 F.4th at 312. We review the class certification 

1 As originally adopted, Rule 23(c)(4) read: “When appropriate (A) 

an action may be brought or maintained as a class action with respect 

to particular issues, or (B) a class may be divided into subclasses and 

each subclass treated as a class, and the provisions of this rule shall 

then be construed and applied accordingly.” FED. R. CIV. P. 23(c)(4) 

(1966). After the 2007 amendments to Rule 23, the former Rule 

23(c)(4)(B) is now Rule 23(c)(5). 
13

decision for an abuse of discretion. Califano v. Yamasaki, 442 

U.S. 682, 703 (1979); Garcia v. Johanns, 444 F.3d 625, 631 

(D.C. Cir. 2006). The district court’s interpretation of Rule 23 

is a question of law that we review de novo. See Orozco v. 

Garland, 60 F.4th 684, 688 (D.C. Cir. 2023). 

IV

We hold that the district court abused its discretion by 

certifying the issue class under Rule 23(c)(4) without first 

determining that Rule 23’s requirements for class certification 

were met as to the issue class. Rule 23(c)(4) does not create a 

fourth category of class action beyond those specified in Rule 

23(b). Instead, Rule 23(c)(4) elucidates what district courts can 

do as part of managing Rule 23-qualifying class actions. 

As a result, any “issue class” under Rule 23(c)(4) must also 

meet the threshold requirements of Rule 23(a) and be 

maintainable under one of the class action types laid out in Rule 

23(b). Because the district court here did not explain how the 

issue class it certified met the requirements of Rule 23(a) and 

(b)—with (b)(3) being the relevant type of class action in this 

case—we remand for further consideration.

A

Under the plain text of Rule 23, all certified classes must 

meet both the threshold requirements of Rule 23(a) and be 

maintainable under one of Rule 23(b)’s categories. There is no 

freestanding class to be certified under Rule 23(c)(4).

To start, courts repeatedly have held that the district court 

must apply the requirements of Rule 23(a) and Rule 23(b) when 

certifying any class. Those criteria are fundamental 

prerequisites to the existence of a class action. See FED.R.CIV.
14

P. 23(a) (describing “prerequisites” to class action); FED. R.

CIV. P. 23(b)(3) (requiring district court to “find[]” 

predominance and superiority); see also, e.g., Tyson Foods, 

Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (Rule 23(b)(3) 

“requires that, before a class is certified under that subsection, 

a district court” make the required findings of predominance 

and superiority); In re White, 64 F.4th at 313 (abuse of 

discretion not to apply Rule 23(a) factors); Wang v. Chinese 

Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013) (“A party 

seeking class certification must satisfy the requirements of 

Federal Rule of Civil Procedure 23(a) and the requirements of 

at least one of the categories under Rule 23(b).”); Gariety v. 

Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004) (“A 

district court may, in its discretion, order that an action proceed 

as a class action only if it finds that the requirements of Federal 

Rule of Civil Procedure 23 have been satisfied.”); In re 

LifeUSA Holding Inc., 242 F.3d 136, 143 (3d Cir. 2001) (“In 

order to be certified, a class must satisfy the four requirements 

of Rule 23(a) of the Federal Rules of Civil Procedure[.] * * * 

If these Rule 23(a) requirements are satisfied, the court must 

also find that the class is maintainable under Rule 23(b)(1), (2), 

or (3).”).

Rule 23(c)(4) does not give the district court a pass on 

those preconditions. To the contrary, Rule 23(c)(4) says 

upfront that an issue class may only be certified “[w]hen 

appropriate[.]” FED. R. CIV. P. 23(c)(4). That appropriateness 

inquiry naturally includes the elementary class-action 

requirements of Rules 23(a) and (b), which ensure that class 

litigation is fair, suitable, and advisable—that is, appropriate. 

What is more, Rule 23(c)(4)’s use of the phrase 

“maintained as a class action” echoes Rule 23(b)’s language 

that “[a] class action may be maintained” if, and only if, Rule 

23(a) is satisfied and if the proposed class falls into one of Rule 
15

23(b)’s types. Plus, Rule 23(c)(4) continues (and ends) by 

stating that “an action may be brought or maintained as a class 

action with respect to particular issues.” FED. R. CIV. P. 

23(c)(4) (emphasis added). That textually directs the court 

right back to the requirements of Rule 23(a) and Rule 23(b) that 

set out the basic ground rules for bringing or maintaining a 

class action. See also Russell, 15 F.4th at 262; 2 NEWBERG &

RUBENSTEIN ON CLASS ACTIONS § 4:92 (6th ed.) (“[T]he 

proponent of an issue class—like the proponent of any other 

class action—must demonstrate that the proposed issue class 

meets all of the requirements of Rule 23(a) and fits into one of 

the categories of Rule 23(b)[.]”). 

Finally, the structure of Rule 23 in general and Rule 23(c)

in particular counsel against finding a standalone Rule 23(c)(4) 

class. Rule 23(c)(2) spells out the notice requirements for each 

variant of a Rule 23(b) class. But it is silent about any notice 

provisions under Rule 23(c)(4) alone. See FED. R. CIV. P.

23(c)(2). Nor does Rule 23(c)(4) contain any substantive 

criteria or requirements of its own for determining if class 

status is warranted or protecting the rights of absent class 

members. It would be passing strange for a Rule as

systematized, specific, and detailed as Rule 23 to unleash a

distinct and wholly unregulated class device in (c)(4)’s single 

sentence. 

In short, Rule 23’s text and structure offer no quarter to the 

view that Rule 23(c)(4) creates an independent type of class 

action that is freed from all of Rule 23’s other class-action 

prerequisites. So the district court should have ensured that the 
16

issue class it certified met all, and not just some, of Rule 23(a) 

and (b)’s preconditions to class status. 

B

1

Applying Rule 23(a) to the issue class before us, we agree 

with the district court that those class-action prerequisites are 

satisfied.

First, the proposed class meets Rule 23(a)(1)’s numerosity 

requirement. See Harris III, 2020 WL 5702085, at *4–5. “The 

numerosity requirement requires examination of the specific 

facts of each case and imposes no absolute limitations.” 

General Tel. Co. of the Nw. v. Equal Emp. Opportunity 

Comm’n, 446 U.S. 318, 330 (1980). 

In this case, there are 862 putative issue class members. 

See Harris III, 2020 WL 5702085, at *5. MTM “does not 

dispute these numbers and makes no arguments against 

numerosity[.]” Id. We agree with the district court that such a 

class qualifies as “so numerous that joinder of all members is 

impracticable[.]” See FED. R. CIV. P. 23(a)(1).

Second, the proposed class meets Rule 23(a)(2)’s 

commonality requirement. “Commonality requires the 

plaintiff to demonstrate that the class members ‘have suffered 

the same injury[.]’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 

338, 349–350 (2011) (quoting General Tel. Co. of Sw. v. 

Falcon, 457 U.S. 147, 157 (1982)). That means that putative 
17

class members’ “claims must depend upon a common 

contention[.]” Id. at 350. 

In this case, there are “at least two” questions of law or fact 

common to the class: “(1) Whether MTM qualifies as a ‘joint 

employer’ and (2) whether MTM qualifies as a general 

contractor” under D.C. law. Harris III, 2020 WL 5702085, at 

*5. Those common contentions and proposed common answer 

cut across all putative class members and depend on common 

evidence, satisfying the commonality requirement.

MTM argues that the commonality requirement is not met 

because there is no “common policy or course of conduct” by 

MTM across the class. MTM Opening Br. 34 (citing Dukes, 

564 U.S. at 344–345). But Rule 23(a)(2) does not require that 

a single policy or course of conduct be the throughline for all 

plaintiffs. Rather, the putative class members must have a 

“common contention” of “such a nature that it is capable of 

classwide resolution—which means that determination of its 

truth or falsity will resolve an issue that is central to the validity 

of each one of the claims in one stroke.” Dukes, 564 U.S. at

350. The questions of whether MTM is a joint employer to the 

Drivers or a general contractor under D.C. law are two such 

questions. That is, determining whether MTM crosses the 

threshold of liability is “central to” and potentially dispositive

of “the validity” of the Drivers’ claims, see id.

Finally, the district court found, and MTM does not 

dispute, that the Drivers’ claims and defenses are typical of the 

class and that they and their counsel will fairly and adequately 

represent the class. See FED. R. CIV. P. 23(a)(3–4); Harris III, 

2020 WL 5702085, at *6–7. We agree. On this record, no

distinction between the Drivers’ claims and defenses and those 

of the other class members has been identified. See J.D. v. 

Azar, 925 F.3d 1291, 1322 (D.C. Cir. 2019) (per curiam) (“[T]o 
18

destroy typicality, a distinction must differentiate the ‘claims 

or defenses’ of the representatives from those of the class.”) 

(emphasis omitted). Nor is there any conflict of interest 

between them and the class. See Amchem Prods., Inc., 521 

U.S. at 625 (“The adequacy inquiry under Rule 23(a)(4) serves 

to uncover conflicts of interest between named parties and the 

class they seek to represent.”).

2

a

Where the district court erred was in failing to ensure that 

the issue class also satisfied one of the three types of authorized 

class actions under Rule 23(b). The parties agree that the only 

relevant class type in this case is a (b)(3) class. The Drivers 

originally sought certification under Rule 23(b)(3), and the 

district court examined only the relationship between Rule 

23(b)(3) and Rule 23(c)(4) before certifying the issue class. 

The problem, though, is that the district court failed to find 

that within the issues for the certified class—whether MTM is 

a joint employer or general contractor—common questions of 

law or fact predominate over individual questions, as Rule 

23(b)(3) requires. See FED. R. CIV. P. 23(b)(3). The court also 

failed to find that the use of an issue class to address those 

questions would be a superior litigation device to other 

available tools for resolving the common questions. See id. 

Without those predicate determinations, the district court erred 

in certifying an issue class under Rule 23(c)(4). In addition, 

because the issue class arises under Rule 23(b)(3), the district 

court had to determine how notice could effectively be given 

in the case. See FED. R. CIV. P. 23(c)(2)(B). Notice is an 

indispensable component of a class action under Rule 23(b)(3). 
19

Yet the court did not address how notice would be 

administrable for this class.

The Drivers argue that the district court did make the 

required (b)(3) findings when it ruled on the initial motion for 

class certification, see Harris III, 2020 WL 5702085, at *7, and 

that it silently incorporated those findings into its certification 

of the issue class. See Harris Br. 6; Oral Arg. Tr. 48. 

The Drivers are mistaken. The district court said that it 

would consider predominance only “after identifying issues 

suitable for class treatment[,]” and then it only reviewed 

predominance as to the two issues for which it did not certify 

an issue class. See Harris IV, 2021 WL 3472381, at *8, *10–

11; see also Oral Arg. Tr. 48–50 (Drivers’ counsel unable to 

point the court to predominance analysis for the certified 

issues); see also Harris Br. 6 (describing the district court as 

relying on Harris III analysis “except as to predominance”). 

Nor did the district court ever find—in the original classcertification decision or otherwise—that the issue class met the 

superiority requirement. 

Because the analysis underlying the class certification 

judgment omitted those key determinations, we remand for the 

district court to determine whether its issue class can 

appropriately be maintained under all of the Rule 23(b)(3) 

criteria and consistent with Rule 23(c)(2)(B)’s notice mandate. 

We outline next some of the key elements of those inquiries

implicated in this case.

b

In undertaking the predominance inquiry on remand, the 

district court must ensure that the common questions within the 

certified issues predominate over any individual ones. The 
20

district court must also evaluate the relationship any certified 

issues have as to the dispute as a whole. A certified issue class 

should encompass a reasonably and workably segregable 

aspect of the litigation. For example, an issue class may be 

appropriate where common questions predominate as to (i) the 

determination of liability, giving rise to a liability-only issue 

class; (ii) proof of a key element of a cause of action, such that 

there is an issue class for that element; or (iii) another aspect of 

the controversy that, if decided, would materially advance the 

fair resolution of the litigation.

We start with common ground, which is that Rule 23(c)(4) 

may be used to certify an issue that is less than an entire cause 

of action. See Harris Br. 9; Oral Arg. Tr. 11, 15, 19; see also

FED. R. CIV. P. 23(c)(1)(B) (district court’s order certifying 

class action “must define the class and the class * * * issues”). 

One common use of Rule 23(c)(4) isfor resolving the issue 

of liability. See In re Brewer, 863 F.3d at 875–876 (noting that 

district courts have the discretion to “certif[y] a Rule 23(c)(4) 

issue class on liability alone”). Even where damages for a 

putative class action may require individualized calculations,

courts have routinely held that those individual considerations 

do not necessarily preclude certification of a class—as long as

the liability issue is common to the class and that commonality 

predominates over any other individualized components of the 

litigation. See Tyson Foods, 577 U.S. at 453–454 (Where “one 

or more of the central issues in the action are common to the 

class and can be said to predominate, the action may be 

considered proper under Rule 23(b)(3) even though other 

important matters will have to be tried separately, such as 

damages or some affirmative defenses peculiar to some 

individual class members.”) (citation omitted); McCarthy v. 

Kleindienst, 741 F.2d 1406, 1415 (D.C. Cir. 1984) (“A district 

court should, of course, ordinarily consider such well-
21

established methods as bifurcating the trial into liability and 

damages phases before denying certification.”); id. (“[T]he 

mere fact that damage awards will ultimately require 

individualized fact determinations is insufficient by itself to 

preclude class certification.”). 

Similarly, courts have embraced the use of a Rule 23(c)(4)

issue class for liability only, even if the remedial claims destroy 

predominance for the cause of action as a whole. See, e.g., 

Nassau County, 461 F.3d at 227 (“[A] court may employ 

subsection (c)(4) to certify a class as to liability regardless of 

whether the claim as a whole satisfies Rule 23(b)(3)’s 

predominance requirement.”); Pella Corp. v. Saltzman, 606 

F.3d 391, 394 (7th Cir. 2010) (per curiam) (“A district court 

has the discretion to split a case * * * by certifying a class for 

liability alone where damages * * * may require individualized 

assessments.”).

2

 

As MTM pointed out at oral argument, certification of an 

issue class can also be appropriate where there is an affirmative 

defense applicable to a large number but not all class members. 

See Oral Arg. Tr. 6, 11, 15; cf. Nassau County, 461 F.3d at 230 

(holding that district court erred by finding that presence of 

affirmative defense barred certification of liability class); see 

2

 See also, e.g., FED. R. CIV. P. 23 Advisory Committee’s Note to 

1966 amendment, 39 F.R.D. 69, 106 (1966) (Under Rule 23(c)(4), 

“in a fraud or similar case the action may retain its ‘class’ character 

only through the adjudication of liability to the class; the members 

of the class may thereafter be required to come in individually and 

prove the amounts of their respective claims.”); cf. Smilow v. 

Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 41 (1st Cir. 2003)

(“[E]ven if individualized determinations were necessary to calculate 

damages, Rule (23)(c)(4)(A) would still allow the court to maintain 

the class action with respect to other issues.”) (referring to the pre2007 version of Rule 23(c)(4)).
22

also Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 

32, 39 (1st Cir. 2003) (discussing the role of affirmative 

defenses in Rule 23(b)(3) predominance analysis). 

Courts have also recognized other appropriate issues for 

(c)(4) issue classes. See, e.g., Russell, 15 F.4th at 270 (holding 

that “district courts may certify ‘particular issues’ for class 

treatment even if those issues, once resolved, do not resolve a 

defendant’s liability”) (quoting FED. R. CIV. P. 23(c)(4)); 

McReynolds, 672 F.3d at 490–491 (finding that disparate 

impact claims could “most efficiently be determined on a classwide basis, consistent with” Rule 23(c)(4)); Valentino, 97 F.3d 

at 1234 (“Rule 23 authorizes the district court in appropriate 

cases to isolate the common issues under [Rule 23(c)(4)] and 

proceed with class treatment of these particular issues.”). Only 

one circuit has suggested otherwise. See Castano, 84 F.3d at

745 n.21 (observing in dicta that “a cause of action, as a whole, 

must satisfy the predominance requirement of (b)(3)”).

But when creating issue classes, district courts must heed 

Rule 23’s carefully calibrated limits on class certification. The 

predominance inquiry “tests whether proposed classes are 

sufficiently cohesive to warrant” class litigation of their 

substantive claims, rather than bringing individual suits. See 

Amchem Prods., Inc., 521 U.S. at 623. In that way, the 

predominance inquiry is an important safeguard against 

unreasonably fractured litigation, and simultaneously protects

the rights of named parties and absent class members alike. See 

id. at 615 (Predominance ensures that the class action is 

“promot[ing] * * * uniformity of decision as to persons 

similarly situated, without sacrificing procedural fairness or 

bringing about other undesirable results.”) (internal quotation 

marks omitted). Predominance also helps courts establish that 

evidence can be fairly and sensibly presented in a way that 

protects the parties’ competing interests. See Russell, 15 F.4th
23 

at 270; 2 NEWBERG & RUBENSTEIN § 4:49 (The predominance 

requirement ensures that individual class members are 

“sufficiently similarly situated” such that “due process permits 

their claims to be compromised in the aggregate.”). 

So district courts must ensure that Rule 23(c)(4)’s 

authorization of issue classes does not end up at war with Rule 

23(b)(3)’s predominance requirement: Plaintiffs cannot 

effectively skirt the functional demands of the predominance 

requirement by seeking certification of an overly narrow issue 

class and then arguing that the issue (inevitably) predominates 

as to itself. Cf. Castano, 84 F.3d at 745 n.21 (noting that such 

an interpretation would “eviscerate the predominance 

requirement”).

Nor can predominance become a tautological inquiry. 

Instead, when certifying any issue class, the district court must 

explain how, within the context of the particular litigation 

before it, common questions predominate within a reasonably 

and workably segregable component of the litigation. An issue 

class cannot consist of a single common question that 

predominates as to itself. Lastly, because the baseline for 

predominance is the resolution of all issues within a fair and 

administrable trial process, courts must also address how 

dividing the litigation through the creation of an issue class 

protects all parties’ interests in the full presentation of their 

claims and evidence. 

c 

In applying the superiority requirement on remand, the 

district court must explain how the use of issue classes is 

“superior to other available methods for fairly and efficiently 

adjudicating the controversy.” FED. R. CIV. P. 23(b)(3). This 

requirement “reinforce[s] the point that the court with the aid 
24

of the parties ought to assess the relative advantages of 

alternative procedures for handling the total controversy[.]” 

FED. R. CIV. P. 23 Advisory Committee’s Note to 1966 

amendment, 39 F.R.D. 69, 103 (1966).

The superiority requirement ensures that class 

adjudication makes the litigation more manageable and

promotes the prompt and efficient resolution of the case. See, 

e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 860 (1999) 

(“One great advantage of class action treatment of mass tort 

cases [at issue in Ortiz] is the opportunity to save the enormous 

transaction costs of piecemeal litigation[.]”); Califano, 442 

U.S. at 701 (“[T]he class-action device saves the resources of 

both the courts and the parties by permitting an issue 

potentially affecting [the putative class members] to be 

litigated in an economical fashion under Rule 23.”). 

The district court here did not explain how creating this

issue class was superior to other potential ways of handling the 

litigation. Neither was the Drivers’ counsel at oral argument 

able to identify any benefits to judicial economy that would 

make class litigation superior to other trial management tools

in this case, beyond tolling the statute of limitations. See Oral 

Arg. Tr. 41–43. 

Yet one alternative to class litigation might be deciding a 

partial summary judgment motion focused on the issues 

proposed to be certified—such as MTM’s employer or general 

contractor status. See Wright v. Schock, 742 F.2d 541, 543–

544 (9th Cir. 1984) (“Under the proper circumstances—where 

it is more practicable to do so and where the parties will not 

suffer significant prejudice—the district court has discretion to 
25

rule on a motion for summary judgment before it decides the 

certification issue.”).

To be sure, Rule 23(c)(1)(A) directs the district court to 

determine the question of certification “[a]t an early practicable 

time[.]” FED. R. CIV. P. 23(c)(1)(A). And our district court’s 

Local Rules require a certification motion within 90 days of 

filing the complaint, absent an extension by the district court. 

See Local Rule 23.1(b). 

But the district court in this case suspended the 90-day 

deadline pending the resolution of MTM’s motion to dismiss. 

See Minute Order, Harris, No. 17 Civ. 01371 (D.D.C. Oct. 26, 

2017). And the litigation here unfolded at such a pace that the 

motion to certify the class was not fully submitted until the case

was nearly three years old. The district court therefore should 

at least have considered whether, at that point, it remained a 

superior form of litigation to certify an issue class rather than 

to resolve the threshold questions going to MTM’s potential 

liability by way of a partial summary judgment motion (such 

as the Drivers’ pending summary judgment motion on MTM’s

status as a joint employer or a general contractor).

d

Finally, the district court’s indication that notice is not 

required for an issue class under Rule 23(b)(3) was incorrect. 

In acting on MTM’s renewed motion for a stay pending appeal, 

the court dismissed MTM’s argument that it would be 

irreparably harmed by the issuance of class notice that might 

have to be withdrawn later. The court explained that there 

would be no irreparable harm to MTM, agreeing with the 

Drivers that no notice needed to be issued for the (c)(4) class. 

See Harris v. Medical Transp. Mgmt., Inc., No. 17 Civ. 01371,

2022 WL 1908822, at *2 (D.D.C. June 3, 2022) (citing Pls. 
26

Mem. Opp. Mot. Stay Pending Appeal at 6–7, No. 17 Civ. 

01371 (D.D.C. April 8, 2022), Dkt. 213).

3

 

That cannot be correct. Because this issue class should 

have been handled as a Rule 23(b)(3) class type, all of the 

procedural protections of such a class apply. That includes

notice of class certification. Compare FED. R. CIV. P. 

23(c)(2)(A) (“For any class certified under Rule 23(b)(1) or 

(b)(2), the court may direct appropriate notice to the class.”),

with 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 that is practicable under the circumstances[.]”)

(emphases added). 

Rule 23(b)(3)’s notice mandate means what it says, and for 

good reason. Because the resolution of the action will bind 

absent class members, basic principles of due process require 

that they be notified that their individual claims are being 

resolved, and that they may opt out of the action if they so 

choose. See Dukes, 564 U.S. at 363; Phillips Petrol. Co. v. 

Shutts, 472 U.S. 797, 812 (1985).

So if the district court certifies the issue class under Rule 

23(b)(3) on remand, it must direct “the best notice that is 

practicable” as part of any certification order. See FED. R. CIV.

P. 23(c)(2)(B).

3

 Following oral argument in this court, the Drivers asked the district 

court to direct notice to the class, a request that MTM opposed. See 

Pls. Mot. Amend the Cert. Order & Direct Notice to the Class, 

Harris, No. 17 Civ. 01371 (D.D.C. Nov. 10, 2022), Dkt. 228; Mem. 

Opp. to Pls. Mot. to Amend/Correct Cert. Order & Direct Notice to 

the Class, Harris, No. 17 Civ. 01371 (D.D.C. Nov. 23, 2022), Dkt. 

229. That motion remains pending. 
27

V

MTM separately urges this court to exercise pendent 

appellate jurisdiction and reverse the district court’s denial of 

its motion to decertify the FLSA collective. We decline to 

review that portion of the district court’s decision.

A

The FLSA sets out certain wage-and-hour protections for 

eligible employees. For example, covered employers must pay

a minimum hourly wage and provide overtime pay to 

employees for hours worked beyond 40 hours a week. 29 

U.S.C. §§ 206, 207. The FLSA also authorizes aggrieved 

employees to file suit to enforce their rights under the statute. 

See id. § 216. 

As relevant here, the FLSA authorizes “collective action” 

litigation. An FLSA collective action may be maintained “by 

any one or more employees for and in behalf of himself or 

themselves and other employees similarly situated.” 29 U.S.C.

§ 216(b). To be bound by the judgment or to recover in an 

FLSA collective action, an employee must affirmatively opt 

into the litigation by filing written consent with the district 

court. See id.; Lindsay v. Government Emps. Ins. Co., 448 F.3d 

416, 419 (D.C. Cir. 2006).

Separate from its class action ruling, the district court ruled 

that the Drivers’ collective action to enforce the wage 

provisions of the FLSA was proper and could go forward, 

denying MTM’s motion to decertify the FLSA class.
28

B

This court has jurisdiction to review “final decisions” of 

the district courts, 28 U.S.C. § 1291, as well as certain types of 

interlocutory orders, see, e.g., id. §§ 158(d)(2)(A); 1292; 18

U.S.C. § 3731; FED. R. CIV. P. 23(f).

The district court’s denial of MTM’s motion to decertify 

the FLSA collective is a nonfinal order that is not within our 

ordinary jurisdiction because it does not terminate the action 

on the merits. See Gelboim v. Bank of America Corp., 574 U.S. 

405, 408–409 (2015) (“A ‘final decision’ is one ‘by which a 

district court disassociates itself from a case.’”) (quoting Swint 

v. Chambers County Comm’n, 514 U.S. 35, 42 (1995)); Catlin 

v. United States, 324 U.S. 229, 233 (1945) (A final decision 

“ends the litigation on the merits and leaves nothing for the 

court to do but execute the judgment.”). Nor does any law 

authorize the interlocutory review of collective action 

determinations under the FLSA.

So to review the district court’s denial of MTM’s motion 

to decertify the FLSA collective, we would have to exercise 

pendent appellate jurisdiction over the FLSA dispute as part of 

our review under Rule 23(f) of the separately certified issue 

class. 

Pendent appellate jurisdiction operates “when, in the 

course of reviewing an order from which an appeal is within its 

jurisdiction,” an appellate court also reviews “another order 

that, while part of the same case or controversy, would not 

otherwise be within its statutory jurisdiction.” Gilda Marx, Inc. 

v. Wildwood Exercise, Inc., 85 F.3d 675, 678 (D.C. Cir. 1996). 

Because interlocutory appeals are generally disfavored and 

neither a statute nor rule specifically authorizes the use of 

pendent jurisdiction, we exercise such jurisdiction “sparingly” 
29

and only “when substantial considerations of fairness or 

efficiency demand it.” See id. at 678–679; id. at 680 (finding 

“no occasion to take the disfavored step of exercising pendent 

jurisdiction” “[w]ithout a reason to believe that the interests of 

judicial economy and fairness to the parties would be served”) 

(internal quotation marks and citation omitted).

Pendent jurisdiction might be warranted, though, “when 

the nonappealable order is ‘inextricably intertwined’ with the 

appealable order, or when review of the former is ‘necessary to 

ensure meaningful review of the latter.’” Gilda Marx, 85 F.3d

at 679 (quoting Swint, 514 U.S. at 51). Yet even if that standard 

is met, the ultimate decision whether to grant pendent appellate 

jurisdiction lies within the court’s discretion. See Kilburn v. 

Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 

1136 (D.C. Cir. 2004) (“In the final balance, whether or not we 

have authority to exercise pendent appellate jurisdiction in this 

case, there is no question that we have discretion to decline to 

do so.”).

On this record, an exercise of pendent appellate 

jurisdiction is not warranted for three reasons.

First, because collective actions differ materially from 

Rule 23 class actions and because they each enforce different 

substantive claims, our review of the district court’s collective 

action ruling would stand distinct from—not be intertwined 

with—our Rule 23(f) review of the class action certification 

order. Which means that appellate review of the former is not 

at all necessary to our review of the latter. Rule 23 actions, in 

fact, “are fundamentally different from collective actions under 

the FLSA[.]” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 

66, 74 (2013). Our analysis of Rule 23’s application to the 

issue class certified by the district court has little relevant 

overlap with the decision whether or not to allow the FLSA 
30

collective action, which is not an issue-specific action and turns 

on a distinct legal analysis. The collective action covers all 

identified FLSA issues as a group, not issue by issue.

In addition, the two group litigation mechanisms diverge 

in terms of their substantive requirements. While Rule 23 

mandates several prerequisites for class certification and 

management of the litigation—including, for example, Rule 

23(b)(3)’s predominance and superiority requirements—the 

FLSA only provides that party plaintiffs must be “similarly 

situated” to certify a collective. Those are quite different 

questions, requiring different textual and precedential analyses. 

See Myers v. Hertz Corp., 624 F.3d 537, 555–556 (2d Cir. 

2010) (declining to exercise pendent appellate jurisdiction over 

FLSA decision because it was not inextricably intertwined with 

Rule 23; rather, Section 216(b)’s “similarly situated” inquiry is 

“quite distinct from the question whether plaintiffs have 

satisfied the much higher threshold” of Rule 23(b)(3) 

predominance).

 

Nor does the collective action implicate the due process 

concerns underlying the Rule 23(b)(3) issue classes and their 

notice requirements. While Rule 23(b)(3) presumes that absent 

class members are represented in the litigation, unless they opt 

out, FLSA actions only include individuals who affirmatively 

opt into the litigation. Compare FED. R. CIV. P. 23(c)(2)(B)

and FED. R. CIV. P. 23(e)(4), with 29 U.S.C. § 216(b); see also 

Lindsay, 448 F.3d at 419 (“Unlike the procedure set out in 29 

U.S.C. § 216(b), Rule 23[(b)(3)] class certification requires 

notice to all potential class members that they must 

affirmatively decline to join (‘opt out [of]’) the lawsuit if they 

do not want to be class members.”). 

These “significant differences between certification under 

[Rule] 23 and the joinder process under [Section] 216(b)[,]”
31

Genesis Healthcare Corp., 569 U.S. at 71 n.1, illustrate how 

review of the collective action certification and the Rule 23 

class certification share little common ground and, instead, “are 

fundamentally different creatures.” Reinig v. RBS Citizens, 

N.A., 912 F.3d 115, 131 (3d Cir. 2018). 

MTM argues that pendent appellate jurisdiction is 

warranted because the district court described the question of 

whether to certify an issue class in the same terms as the 

question of whether to decertify the FLSA collective—namely, 

as hinging on whether it would “materially advance the 

litigation[.]” See Harris IV, 2021 WL 3472381, at *9 (quoting 

McLaughlin, 522 F.3d at 234).

That is not sufficient. This court is not bound by the 

district court’s characterization of the questions before it. 

Rather, “it is the ‘issues presented’ to this Court that must be 

‘inextricably intertwined’ for pendent appellate jurisdiction to 

be properly exercised, not the issues presented to the district 

court.” Myers, 624 F.3d at 556 (quoting CFTC v. Walsh, 618 

F.3d 218, 225 n.3 (2d Cir. 2010)). The class action analysis 

undertaken on this appeal has no relevant overlap with the 

collective action objections that MTM raises.

Second, several considerations affirmatively weigh against

the exercise of pendent appellate jurisdiction. See generally

Gilda Marx, 85 F.3d at 679. To begin, the FLSA appeal 

concerns a different cause of action altogether from the Rule 

23(f) petition. See id. at 678. What is more, the FLSA appeal 

would require us to set out a standard for “similarly situated,” 

which this circuit has not yet done, and which would require 
32

wading into a circuit conflict.4 Given that, granting pendent 

appellate review would add weighty and entirely distinct issues 

to our interlocutory review—issues that have no overlap with 

the Rule 23 question of issue-class certification. 

Review of the FLSA order would also be interlocutory, 

which further weighs against exercising pendent appellate 

jurisdiction. See Gilda Marx, 85 F.3d at 679. Granting review

would compound the departure from ordinary principles of 

finality. See id. And because the issues to review have no 

overlap with the Rule 23 inquiry, the disruption to district court 

proceedings would be doubled. Plus, were we to review the 

FLSA question, we would be “reaching an issue that might be 

4

 Compare, e.g., Scott, 954 F.3d at 516 (“[T]o be ‘similarly situated’ 

means that named plaintiffs and opt-in plaintiffs are alike with regard 

to some material aspect of their litigation.”), and Campbell, 903 F.3d 

at 1114 (“[P]arty plaintiffs must be alike with regard to some 

material aspect of their litigation.”), with Thiessen v. General Elec. 

Cap. Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (weighing “several 

factors, including (1) disparate factual and employment settings of 

the individual plaintiffs; (2) the various defenses available to 

defendant which appear to be individual to each plaintiff; [and] (3) 

fairness and procedural considerations”) (internal quotation marks 

omitted); Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 

2007) (“[T]he similarities necessary to maintain a collective action 

under § 216(b) must extend beyond the mere facts of job duties and 

pay provisions.”) (internal quotation marks and citation omitted); 

Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1262 (11th Cir. 

2008) (“[T]he district court must consider whether the defenses that 

apply to the opt-in plaintiffs’ claims are similar to one another or 

whether they vary significantly.”) (citing Anderson, 488 F.3d at 954 

n.8); and Halle v. West Penn Allegheny Health Sys. Inc., 842 F.3d 

215, 226 (3d Cir. 2016) (“Our Court * * * consider[s] all relevant 

factors and mak[es] a determination on a case-by-case basis as to 

whether the named plaintiffs have satisfied this burden by a 

preponderance of the evidence.”).
33

mooted or altered by subsequent district court proceedings.” 

See id.

Third, the district court declined to certify the collective 

action question for interlocutory review under 28 U.S.C. 

§ 1292(b). Harris V, 2021 WL 5446829, at *4. The court 

explained that MTM had failed to demonstrate “that 

interlocutory appeal will materially advance the disposition of 

the litigation.” Id. While the district court’s Section 1292(b) 

judgment does not control our pendent jurisdiction decision, 

the district court’s expert judgment on trial management is a 

relevant consideration weighing against an exceptional 

exercise of pendent jurisdiction. See Swint, 514 U.S. at 47

(“Congress * * * chose to confer on district courts first line 

discretion to allow interlocutory appeals.”).

For those reasons, pendent appellate jurisdiction would not 

be appropriate in this case.

VI

Because the district court failed to determine whether the 

classes it certified met Rule 23(a) and (b)’s prerequisites, we 

remand the order certifying an issue class under Federal Rule 

of Civil Procedure 23(c)(4) for further consideration consistent 

with this opinion. We decline to exercise pendent appellate 

jurisdiction over the district court’s denial of decertification of 

the FLSA collective.

So ordered.