McElmurry v. US Bank National Association ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KERI MCELMURRY; KAREN MRAZEK, 
individual and on behalf of all
similarly situated,
Plaintiffs-Appellants,
v. No. 05-36047
U.S. BANK NATIONAL ASSOCIATION,  D.C. No.
and its affiliates and subsidiaries, CV-04-00642-DJH
Defendant-Appellee,
and
DOES 1-25,
Defendant.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
9449
9450 MCELMURRY v. U.S. BANK NAT’L ASSOC.
In re: KERI MCELMURRY; In re: 
KAREN MRAZEK, individually and
on behalf of all similarly situated,
KERI MCELMURRY; KAREN MRAZEK,
individual and on behalf of all
similarly situated, No. 05-76425
Petitioners,
v.  D.C. No.
CV-04-00642-ALH
UNITED STATES DISTRICT OPINION
COURT FOR THE DISTRICT OF
OREGON,
Respondent,
U.S. BANK NATIONAL ASSOCIATION,
and its affiliates and subsidiaries;
DOES 1-25,
Real Parties in Interest.

Petition for Writ of Mandamus to the
United States District Court for the
District of Oregon
Argued and Submitted
February 5, 2007—Portland, Oregon
Filed August 8, 2007
Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
9452 MCELMURRY v. U.S. BANK NAT’L ASSOC.
COUNSEL
Jacqueline L. Koch, Koch & Deering, Portland, Oregon, for
the petitioners.
Timothy R. Volpert and Christopher McCracken, Davis
Wright Tremaine LLP, Portland, Oregon, for the respondent.
OPINION
BYBEE, Circuit Judge:
Plaintiffs-Appellants Keri McElmurry and Karen Mrazek
bring this interlocutory appeal from a district court order
MCELMURRY v. U.S. BANK NAT’L ASSOC. 9453
denying their motion to issue notice of a collective action
brought under § 16(b) of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 216(b). We hold that the collateral
order exception to the final judgment rule is inapplicable here
because the district court’s order is not “effectively unreview-
able on appeal from a final judgment.” Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468 (1978); see also Cohen v. Bene-
ficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). We
thus dismiss Appellants’ interlocutory appeal for lack of
appellate jurisdiction. We also deny Appellants’ petition for
a writ of mandamus.
I
Appellants are current or former employees of U.S. Bank
National Association (“U.S. Bank”). They brought suit to
recover overtime pay allegedly denied them, in violation of
the FLSA. The FLSA requires employers to pay time-and-a-
half for hourly work in excess of forty hours per week. See 29
U.S.C. § 207(a). Appellants allege that U.S. Bank underpaid
them because the bank’s conversion chart required hourly
U.S. Bank employees to round down the actual time worked
to the next lowest tenth of an hour1 and, according to the com-
plaint, they were underreporting their hours. Appellants
brought their claim as a collective action under the FLSA,
which authorizes an employee to bring an action on behalf of
“himself . . . and other employees similarly situated.” 29
U.S.C. § 216(b). Here, the asserted “similarly situated”
employees were other workers governed by U.S. Bank’s time-
keeping practices.
A “collective action” differs from a class action. See gener-
ally CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY
KANE, 7B FED. PRAC. & PROC. § 1807 (3d ed. 2005). In a class
1
If, for example, an employee worked 0-5 minutes, the chart indicated
a conversion to 0.0 hours, if an employee worked 6-11 minutes, the chart
indicated a conversion to 0.1 hours, and so on.
9454 MCELMURRY v. U.S. BANK NAT’L ASSOC.
action, once the district court certifies a class under Rule 23,
all class members are bound by the judgment unless they opt
out of the suit. By contrast, in a collective action each plaintiff
must opt into the suit by “giv[ing] his consent in writing.” 29
U.S.C. § 216(b). As result, unlike a class action, only those
plaintiffs who expressly join the collective action are bound
by its results. See 29 U.S.C. § 256; Partlow v. Jewish
Orphans’ Home of S. Cal., Inc., 645 F.2d 757, 758-59 (9th
Cir. 1981), abrogated on other grounds by Hoffman-LaRoche
Inc. v. Sperling, 493 U.S. 165 (1989). Because non-parties to
a collective action are not subject to claim preclusion, giving
notice to potential plaintiffs of a collective action has less to
do with the due process rights of the potential plaintiffs and
more to do with the named plaintiffs’ interest in vigorously
pursuing the litigation and the district court’s interest in
“managing collective actions in an orderly fashion.”
Hoffmann-LaRoche, 493 U.S. at 173. Although § 216(b) does
not require district courts to approve or authorize notice to
potential plaintiffs, the Supreme Court held in Hoffman-
LaRoche that it is “within the discretion of a district court” to
authorize such notice. Id. at 171; see Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000)
(a district court “may authorize the named plaintiffs . . . to
send notice to all potential plaintiffs”). In this case, after
extensive discovery, Appellants twice asked the district court
to approve notice to potential plaintiffs and to toll the statute
of limitations pending the notice process. The district court
denied both requests. The current appeal is from the district
court’s second order, dated October 7, 2005, denying Appel-
lants’ request for notice and rejecting as moot a request to toll
the statute of limitations. Subsequent to that order, Appellants
filed both this appeal and a petition for a writ of mandamus.
II
[1] The threshold issue is whether we have appellate juris-
diction over the district court’s order denying Appellants’
motion for notice to putative class members. The order is not
MCELMURRY v. U.S. BANK NAT’L ASSOC. 9455
a final decision subject to appeal under 28 U.S.C. § 1291,2
and Appellants did not seek certification under 28 U.S.C.
§ 1292.3 Consequently, the district court’s order is appealable
only if it falls within the collateral order exception to the final
judgment rule. See Cohen, 337 U.S. at 546-47.
[2] Under the collateral order exception, an appellate court
“may exercise its § 1291 jurisdiction to review a district court
order that is not a final decision.” Does I thru XXIII, 214 F.3d
at 1066. This is “a narrow exception to the requirement that
all appeals under § 1291 await final judgment on the merits.”
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374
(1981). Jurisdiction exists in only a “small class” of cases that
are deemed “too important to be denied review and too inde-
pendent of the cause itself to require that appellate consider-
ation be deferred until the whole case is adjudicated.” Cohen,
337 U.S. at 546. To qualify as a collateral order suitable for
appellate review, an order must: 1) “conclusively determine
the disputed question”; 2) “resolve an important issue com-
pletely separate from the merits of the action”; and 3) “be
effectively unreviewable on appeal from a final judgment.”
Does I thru XXIII, 214 F.3d at 1066 (quoting Coopers & Lyb-
rand, 437 U.S. at 468). Because collateral jurisdiction
requires all three elements, we lack collateral order jurisdic-
tion if even one is not met. See Stringfellow v. Concerned
Neighbors in Action, 480 U.S. 370, 375 (1987).
2
Section 1291 provides that “[t]he courts of appeals . . . shall have juris-
diction of appeals from all final decisions of the district courts of the
United States.”
3
Under 28 U.S.C. § 1292(b), had plaintiffs sought and received from the
district court a statement that the denial of motion for notice “involve[d]
a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal . . . may materially
advance the ultimate termination of the litigation,” we would “have juris-
diction of [the] appeal” and could, “in [our] discretion, permit [the] appeal
to be taken . . . .”
9456 MCELMURRY v. U.S. BANK NAT’L ASSOC.
[3] The district court’s order denying Appellants’ motion
for notice would not be “effectively unreviewable” if we do
not exercise jurisdiction. An order is deemed effectively unre-
viewable only where “ ‘the legal and practical value of [the
right at stake will] be destroyed if [ ] not vindicated before
trial.’ ” Midland Asphalt Corp. v. United States, 489 U.S. 794,
799 (1989) (quoting United States v. MacDonald, 435 U.S.
850, 860 (1978)). For example, in Cohen, the defendants
appealed when the district court denied their request that the
plaintiffs post a bond for costs and attorneys fees under New
Jersey law. See Cohen, 337 U.S. at 544-45. The Court held
that the denial was immediately appealable because it was
conclusive; the posting of a bond was collateral to the merits;
and, if review were postponed to the termination of the case,
“it [would] be too late effectively to review the present order
and the rights conferred by the statute, if it is applicable,
[would] have been lost, probably irreparably.” Id. at 546.
Similarly, in Does I Thru XXIII, the district court dismissed
a “John Doe” complaint brought under the FLSA, but with
leave to amend the complaint with the plaintiffs’ true names.
See 214 F.3d at 1062. The plaintiffs appealed the order, argu-
ing that they feared that if their names were revealed they
would be fired from their employment, deported, and jailed in
their home country. See id. We accepted the appeal and
explained the plaintiffs’ dilemma:
If plaintiffs amend their complaint to state their true
names, plaintiffs will lose the opportunity to have
the anonymity question decided by an appellate
court. Plaintiffs could obtain immediate review by
not amending their complaint and instead allowing
the district court to enter a final judgment. But if
they lose on appeal of the anonymity issue, they will
have lost the option to pursue their FLSA claims
under their real names because the district court will
have already entered a final judgment dismissing the
case.
MCELMURRY v. U.S. BANK NAT’L ASSOC. 9457
Does I thru XXIII, 214 F.3d at 1067.
[4] We cannot see that Appellants will forfeit the opportu-
nity to raise their arguments on an appeal from a final judg-
ment in this case. Appellants argue that the statute of
limitations will continue to run, and that some employees may
lose their opportunity to participate in a collective action if
they wait until after an appeal from final judgment. Although
employees who may be similarly situated but have not opted-
in to the action are not bound by its conclusion, and may pur-
sue their actions individually, see Ballaris v. Wacker Siltronic
Corp., 370 F.3d 901, 906 n.9 (9th Cir. 2004), we understand
Appellants’ concern. However, these arguments have been
made in the context of class action suits as well, and it is well-
established that there is no collateral order jurisdiction over a
district court decision to certify or not to certify a class action
under Rule 23. See Coopers & Lybrand, 437 U.S. at 477 (no
collateral jurisdiction over appeal from order refusing to cer-
tify the class); Blackie v. Barrack, 524 F.2d 891, 895 (9th Cir.
1975) (no collateral jurisdiction over appeal from order certi-
fying the class). Although, as we have pointed out, there are
differences between a collective action brought pursuant to
§ 216(b) and a class action brought under Rule 23, those dif-
ferences are not relevant to whether we may exercise collat-
eral order jurisdiction. See Baldridge v. SBC Commc’ns, Inc.,
404 F.3d 930, 931-32 & n.2 (5th Cir. 2005) (applying Coo-
pers & Lybrand, by analogy, to collective actions).4
4
Appellants point out that Rule 23 now provides that “A court of
appeals may in its discretion permit an appeal from an order of a district
court granting or denying class action certification . . . .” FED. R. CIV. P.
23(f). This provision, adopted in 1998, abrogates Coopers & Lybrand to
the extent it permits interlocutory review of class certification decisions.
See Baldridge, 404 F.3d at 932. It does not, however, affect the reasoning
in Coopers & Lybrand. Moreover, because there is no comparable inter-
locutory review provision in § 216(b), Rule 23(f) only strengthens our
conclusion.
9458 MCELMURRY v. U.S. BANK NAT’L ASSOC.
[5] Our conclusion is consistent with the views of the other
circuits that have addressed collateral order jurisdiction over
§ 216(b) collective action decisions. Those courts have uni-
formly held that they lacked jurisdiction over the appeal, both
where the district court has certified and decertified the col-
lective action. The Sixth Circuit addressed the question most
recently in Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th
Cir. 2006). Wal-Mart appealed a district court order granting
the plaintiffs’ request for notice to potential plaintiffs in the
region. See id. at 545. The Sixth Circuit held that it lacked
jurisdiction: “there is no reason our court could not, following
an appeal from final judgment, determine that part or all of
the plaintiff group was improperly deemed to be similarly sit-
uated and therefore improperly notified and included by opt-
in. We see no obstacle to our court’s later review of this
issue.” Id. at 549. See also Baldridge, 404 F.3d at 931;
Lusardi v. Xerox Corp., 747 F.2d 174, 177-78 (3d Cir. 1984).
The Third Circuit came to the same conclusion in a case in
which the district court first certified and then decertified the
collective action. See Lusardi v. Lechner, 855 F.2d 1062,
1065 (3d Cir. 1988). The court concluded that “[a] decertifi-
cation order is reviewable upon appeal from a final judgment.
Therefore, such an order . . . fails to fall within the Cohen
‘collateral order’ exception.” Id. at 1068-69 (citation omitted).
Appellants contend that the district court erred by consider-
ing evidence that goes to the merits. They point to language
in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), that “a
preliminary determination of the merits may result in substan-
tial prejudice” because it “may color the subsequent proceed-
ings.” Id. at 177-78. Eisen was an interlocutory appeal of an
order allocating the costs of providing notice in a Rule 23
class action. See id. at 167-69. However, the language in
Eisen that Appellants invoke referred to the district court’s
decision on the merits, not to the Court’s consideration of the
jurisdictional question. Contrary to Appellants’ arguments,
Eisen did not rely on burdens in discovery to support interloc-
utory jurisdiction. Rather, Eisen observed that the order at
MCELMURRY v. U.S. BANK NAT’L ASSOC. 9459
issue resembled the posting of a bond for costs, see Cohen,
337 U.S. 541, the effects of which could not be reversed on
appeal. See 417 U.S. at 171-72. Eisen provides no support for
appeal of the district court’s order here. See Coopers & Lyb-
rand, 437 U.S. at 468 & n.9 (distinguishing Eisen from
Cohen).
[6] We have reviewed Appellants’ remaining arguments
and find them without merit. Appellants have twice requested
notice to potential plaintiffs; nothing in the district court
orders would preclude the court from revisiting its decision
during subsequent proceedings. See Comer, 454 F.3d at 548-
49; Baldridge, 404 F.3d at 931-32. In any event, the district
court’s decision is reviewable in an appeal from a final judg-
ment. We lack jurisdiction over this appeal.
III
[7] Alternatively, Appellants petition for a writ of manda-
mus, which would permit review of this otherwise nonappeal-
able order. Mandamus is “an extraordinary remedy, to be
reserved for extraordinary situations.” Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). To
issue a writ of mandamus, we must be “firmly convinced that
the district court has erred and that the petitioner’s right to the
writ is clear and indisputable.” Credit Suisse v. U.S. Dist.
Court, 130 F.3d 1342, 1345 (9th Cir. 1997); see also United
States v. Austin, 416 F.3d 1016, 1024 (9th Cir. 2005) (review-
ing for clear error).
[8] We have identified five factors for determining whether
mandamus relief is warranted:
(1) “[petitioner] has no other adequate means, such
as a direct appeal, to attain the relief he or she
desires”; (2) “[t]he petitioner will be damaged or
prejudiced in a way not correctable on appeal”; (3)
“[t]he district court’s order is clearly erroneous as a
9460 MCELMURRY v. U.S. BANK NAT’L ASSOC.
matter of law”; (4) “[t]he district court’s order is an
oft-repeated error, or manifests a persistent disregard
of the federal rules”; and (5) “[t]he district court’s
order raises new and important problems, or issues
of law of first impression.”
Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir.
1977) (citations omitted). The first two factors are not met
here, for all the reasons we have discussed in the previous
section. Consequently, we will deny the petition for a writ of
mandamus.
IV
For the foregoing reasons, we dismiss the appeal for lack
of jurisdiction and deny Appellants’ petition for a writ of
mandamus.
Appeal DISMISSED; Petition DENIED.