In an interlocutory appeal from the grant of class certification, the D.C. Circuit refused to extend pendent appellate jurisdiction over the certification of a FLSA collective action.
July 21, 2023
In Harris v. Medical Transportation Management, Inc., the D.C. Circuit reviewed (and reversed) a grant of class certification. But it refused to use pendent appellate jurisdiction to review certification of a collective action under the Fair Labor Standards Act. The court explained that class actions and collective actions “are fundamentally different creatures.” The court of appeals did not need to review the propriety of the collective action to address class certification. And the resolution of the class-certification appeal did not necessarily resolve the propriety of the collective action. The court added that even if it could exercise pendent appellate jurisdiction, it would decline to do so given the complexity of the collective-action issues.
The Class & Collective Actions in Harris
Harris involved wage-and-hour claims against a provider of non-emergency medical transportation services. One issue in the case was whether the defendant was an employer or general contractor of the plaintiffs. If it was either, liability could attach. But if it wasn’t—if it neither employed the plaintiffs nor acted as a general contractor in relation to them—it wouldn’t be liable.
The district court conditionally certified the action as a collective action under the Fair Labor Standards Act. Some time later, the district court refused to certify a damages class under Federal Rule of Civil Procedure 23(b)(3). The district court did, however, certify an issue class under Rule 23(c)(4). The issues for the class were the defendant’s status as an employer or general contractor.
The defendant petitioned the D.C. Circuit for permission to appeal under Rule 23(f), which the court of appeals granted. The defendant also asked the district court to certify its collective-action ruling for an appeal under 28 U.S.C. § 1292(b). But the district court denied that request.
The Rule 23(f) Petition
Harris includes a brief explanation of why the D.C. Circuit agreed to hear the Rule 23(f) appeal. (Explanations for the exercise of discretion under Rule 23(f) are rare.) The court of appeals concluded that “[t]he district court’s decision to certify an issue class present[ed] an unsettled and fundamental issue of law relating to class actions that is important and likely to evade end-of-the-case review[.]” (Quotation marks omitted.) “Other circuits have applied Rule 23(c)(4) in a variety of ways.” And a merits decision in favor of the defendant could prevent the court of appeals from reviewing this issue.
The D.C. Circuit went on to hold that to certify an issue class under Rule 23(c)(4), the class must also meet the requirements of Rule 23(a) and (b).
Pendent Appellate Jurisdiction Over the Collective Action
The D.C. Circuit also declined to extend pendent appellate jurisdiction over the certification of t he collective action.
Pendent appellate jurisdiction allows a court of appeals to review a normally non-appealable issue alongside an appealable one. The non-appealable issue essentially piggybacks on the appealable one. The standards for exercising pendent appellate jurisdiction vary among the circuits. But courts generally require either that (1) review of the non-appealable issue is necessary to effectively review the appealable one, or (2) resolution of the appealable issue necessarily resolves the non-appealable issue.
The D.C. Circuit gave three reasons for not exercising pendent appellate jurisdiction in Harris.
First, the issues were too distinct. Class actions and collective actions “are fundamentally different creatures.” Further, the class and collective actions in Harris concerned different substantive claims. Reviewing the collective action was thus not necessary to review class certification. And the D.C. Circuit’s resolution of the class-certification appeal did not necessarily resolve the propriety of the collective action.
Second, the collective-action was complex and one on which the circuits have split. Exercising pendent appellate jurisdiction would thus “add weighty and entirely distinct issues” to the appeal.
Third, the district court had declined to certify its collective-action decision for an immediate appeal under 28 U.S.C. § 1292(b). The district court had determined that immediate review of its collective-action decision would not “materially advance the disposition of the litigation.” This “expert judgment on trial management” was relevant to the D.C. Circuit’s exercise of discretion.
Harris v. Medical Transportation Management, Inc., 2023 WL 4567258 (D.C. Cir. July 18, 2023), available at the D.C. Circuit and Westlaw