Baldridge, et al v. SBC Comm Inc, et al

United States Court of Appeals
Fifth Circuit
F I L E D
March 28, 2005
Charles R. Fulbruge III
Clerk
REVISED MARCH 29, 2005
In the
United States Court of Appeals
for the Fifth Circuit
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m 04-10819
Summary Calendar
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LINDSEY BALDRIDGE; IRIS ELAINE MOSLEY; CINDY OPAITZ; LINDA SAUNDERS;
SUSAN MIMMS; LEROY DURAN; FRANK BRISENO; JAMES BULLS; ROYCE GLENN;
MICHAEL WATKINS; STEVEN MADRID; LINDA SAN PEDRO,
Plaintiffs-Appellees,
VERSUS
SBC COMMUNICATIONS, INC.,
A DELAWARE CORPORATION;
CINGULAR WIRELESS LLC,
A DELAWARE LIMITED LIABILITY COMPANY,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
______________________________

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Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The defendants seek an interlocutory appeal
of a class certification order under 29 U.S.C.
§ 216(b), which is part of the Fair Labor
Standards Act (“FLSA”). We dismiss for
want of appellate jurisdiction. The collateral
order exception to the final judgment rule is
inapplicable, because the question of § 216(b)
class certification has not yet been conclusively
determined and is still subject to revision by
the district court.
I.
The plaintiffs, employees of Cingular Wire-
less LLC (“Cingular Wireless”), filed an action
for overtime pay under the FLSA. After
discovery had commenced, the district court
certified the case as a collective action under §
216(b), then modified the certification by
drastically narrowing the scope of the class.
The court declined to certify an interlocutory
appeal under 28 U.S.C. § 1292(b) and has
scheduled a date to consider a motion for
decertification of the class.
II.
We are presented with the res nova issue of
whether we have appellate jurisdiction over a
§ 216(b) class certification order pursuant to
the “collateral order” exception to the final
judgment rule of 28 U.S.C. § 1291, derived
from Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541 (1949). As a threshold matter,
an order conditionally certifying a class and
authorizing notice is not a final decision,
terminating the litigation and allowing appeal
under § 1291. “To come within the ‘small
class’ of decisions excepted from the final-
judgment rule by Cohen, the order must con-
clusively determine the disputed question,
resolve an important issue completely separate
from the merits of the action, and be effec-
tively unreviewable on appeal from a final
judgment.” Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978). Only “serious and
unsettled question(s)” come within the mean-
ing of the Cohen rule, and it is a strictly con-
strued doctrine.1
In Coopers & Lybrand, id. at 469, the
Court refused to extend the Cohen collateral
order doctrine to cover class certification
questions, finding inter alia that a Federal
Rule of Civil Procedure 23 class certification
decision does not conclusively determine the
disputed question, because the order is subject
to revision in the district court. Similarly, in
Lusardi v. Xerox Corp., 747 F.2d 174, 175,
177-78 (3d Cir. 1984), the court extended
Coopers & Lybrand to certification decisions
under § 7(b) of the Age Discrimination in
Employment Act of 1967, which incorporates
the language of § 216(b) in establishing its
collective action provisionSSsimilarly finding
that the certification order lacked conclusive-
ness because it was subject to revision and
possible decertification.
Just as in Coopers & Lybrand and Lusardi,
the class certification order here is subject to
revision before the district court addresses the
merits.2 As we have noted, the court has
1 Cohen, 337 U.S. at 547; In re Corrugated
Container Antitrust Litig., 611 F.2d 86, 89 (5th
Cir. 1980).
2 Cingular Wireless argues that Coopers & Ly-
brand does not apply because it involved a decision
to decertify, rather than certify, a class. Although
it is true that the Court was reviewing a decertifica-
tion order, the Court made the broad statement that
“[a]n order passing on a request for class certifica-
(continued...)

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already used its discretion to modify the origi-
nal certification order to limit the scope of the
class and has scheduled a date to consider
decertification before trial begins.3
The defendants correctly point out that the
holding in Coopers & Lybrand is abrogated to
the extent that the subsequently enacted Fed-
eral Rule of Civil Procedure 23(f) specifically
allows for interlocutory review of class certifi-
cation decisions at the discretion of the re-
spective courts of appeals under rule 23.4 But,
as the district court observed, this case in-
volves a “garden-variety” § 216(b) FLSA
action and is not a rule 23 class action, so rule
23(f) is inapplicable.
Although the holding of Coopers &
Lybrand may have been abrogated by the
enactment of rule 23(f), the Court’s reasoning
is persuasive of the method by which we shou-
ld analyze the application of Cohen to ques-
tions of class certification in the absence of
such a procedural rule or similar legislative
enactment. That is the situation with which
we are confrontedSSall we have before us is
the final judgment rule of § 1291, the FLSA
collective action provision, and Cohen.
The defendants also argue at length that we
should look persuasively at the policies behind
rule 23(f) when analyzing whether the Cohen
doctrine applies to confer jurisdiction over
their attempted appeal. After noting the vast
expenses they anticipate in defending this
class action suit, they point to several cases
from other circuits 5 that consider costs and
pressures on the defendant to settle as impor-
tant factors appellate courts should consider in
deciding whether to grant interlocutory review
under rule 23(f), based on the committee notes
accompanying the rule.
Although such policy concerns may be
proper for legislative attention, they are ir-
relevant to the issue of whether the Cohen
collateral order exception applies. Coopers &
Lybrand, 437 U.S. at 470. Outside the rule 23
context, “[i]f the expense of litigation were a
sufficient reason for granting an exception to
the final judgment rule, the exception might
well swallow the rule.” Lusardi, 747 F.2d at
178. Any policy justifications are not relevant
to § 216(b) collective actions in the absence of
an applicable procedural rule or act of Con-
2(...continued)
tion does not fall in [the] category” of “the ‘small
class’ of decisions excepted from the final-judg-
ment rule by Cohen.” Coopers & Lybrand, 437
U.S. at 468-69.
3 Although the defendants may be correct in
noting that the burden of persuasion shifts from
plaintiffs (to show the merits of certification) to
defendants (to show the merits of decertification),
the difference is irrelevant. A decertification deci-
sion would be a revision of the original order, so
concerns regarding differing burdens of proof do
not overcome the overriding interests of the final-
judgment ruleSSpreventing “the hazard [of] piece-
meal appeals [that] burden the efficacious admin-
istration of justice and unnecessarily protract litiga-
tion.” In re Nissan Motor Corp. Antitrust Litig.,
552 F.2d 1088, 1094 (5th Cir. 1977).
4 Moreover, although Lusardi did not deal with
certification orders under rule 23, it relied on the
logic of Coopers and pre-dated the enactment of
rule 23(f).
5 Prado-Steiman v. Bush, 221 F.3d 1266, 1272
(11th Cir. 2000) (“[A]n appeal ordinarily should be
permitted when the grant of class status raises the
stakes of the litigation so substantially that the de-
fendant likely will feel irresistible pressure to set-
tle.”) (quoting Waste Management Holdings, Inc.,
v. Mowbray, 208 F.3d 288, 293 (1st Cir. 2000));
see also Blair v. Equifax Check Servs., Inc., 181
F.3d 832, 834 (7th Cir. 1999).

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gress.6 Accordingly, because the question of
class certification has not yet been conclusively
determined, the Cohen collateral order excep-
tion to § 1291 is inapplicable.
The appeal is DISMISSED for want of
jurisdiction.7
6 A critical difference between a § 216(b) class
action and a rule 23 class action is that the former
requires each class member to opt in as a party
plaintiff, but the latter includes all absent class
members who do not affirmatively opt out. Conse-
quently, Congress could rationally conclude that
the default rule allows rule 23 certification orders,
on average, to result in larger, more financially
onerous classes, thereby giving stronger policy
justification for a special procedural rule allowing
interlocutory appeals of those orders and trumping
the final judgment rule of § 1291.
7 The plaintiffs have requested sanctions under
Federal Rule of Civil Procedure 38 and our local
rules. Because this appeal is not frivolous, we
deny the request.

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