Halle v. West Penn Allegheny Health System Inc.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3089
_____________
STEVEN HALLE,
on behalf of himself and all others similarly situated
v.
WEST PENN ALLEGHENY HEALTH SYSTEM INC;
WESTERN PENNSYLVANIA
HEALTHCARE SYSTEM INC; ALLE KISKI MEDICAL
CENTER; ALLEGHENY GENERAL
HOSPITAL; ALLEGHENY GENERAL HOSPITAL
SUBURBAN CAMPUS; WESTERN
PENNSYLVANIA HOSPITAL; WESTERN
PENNSYLVANIA HOSPITAL FORBES
REGIONAL CAMPUS; ALLEGHENY MEDICAL
PRACTICE NETWORK; ALLEGHENY
SPECIALTY PRACTICE NETWORK; WEST PENN
PHYSICIAN PRACTICE NETWORK;
ALLEGHENY SINGER RESEARCH INSTITUTE;
HIGHMARK INC; ALLEGHENY HEALTH
NETWORK; JOHN W. PAUL; BART METZGER;
CHRISTOPHER T. OLIVIA; JOHN LASKY;
CANONSBURG GENERAL HOSPITAL
SENORA TARPLEY; KATIEJO BIGENHO; WAYNE
HABER,
on their own behalf and on behalf of all
other opt-in plaintiffs,
Appellants
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-13-cv-01449
District Judge: The Honorable Cathy Bissoon
______________
Argued September 28, 2016
Before: AMBRO, SMITH, * and FISHER, Circuit Judges
(Filed: November 18, 2016)
David S. Fryman (Argued)
Elizabeth K. McManus
Ballard Spahr
1735 Market Street
51st Floor
Philadelphia, PA 19103
Counsel for Appellee
*
Honorable D. Brooks Smith, United States Circuit Judge for
the Third Circuit, assumed Chief Judge status on October 1,
2016.
2
Jonathan W. Ferris
J. Nelson Thomas (Argued)
Thomas & Solomon
693 East Avenue
Rochester, NY 14607
Counsel for Appellant
_____________________
OPINION
_____________________
SMITH, Chief Judge.
Appellants are three hospital employees who claim
they were not properly compensated for work performed
during meal breaks. They seek review of a District Court’s
decision that declined to permit a civil case in which they
wished to participate to continue as a collective action under
the Fair Labor Standards Act (“FLSA”) § 16(b), 29 U.S.C.
§ 216(b).
This is the second decertification-related appeal in a
series of four similar FLSA cases filed in the Western District
of Pennsylvania. We dismissed the first appeal, which
consolidated two of the District Court proceedings, for lack of
appellate jurisdiction and mootness. Camesi v. University of
Pittsburgh Med. Ctr., 729 F.3d 239 (3d Cir. 2013).
Appellants in the current appeal candidly acknowledge that
they are before us in an effort to correct the procedural flaws
that prevented us from reaching the merits of the
3
decertification decision in the first appeal. Despite their
efforts, Appellants fare no better this time around. We will
dismiss this appeal.
I.
A.
The first round of litigation began in 2009 when two
groups of plaintiffs filed separate but similar complaints
against two large Western Pennsylvania hospitals and their
affiliated health care facilities and centers: Camesi v.
University of Pittsburgh Medical Center, No. 3:09-cv-00085
(W.D. Pa.), and Kuznyetsov v. West Penn Allegheny Health
System, Inc., No. 2:09-cv-00379 (W.D. Pa.) (later
consolidated into No. 2:10-cv-00948 (W.D. Pa.)). The
complaints alleged that the hospital defendants violated the
FLSA by failing to properly pay their employees for work
performed during scheduled meal breaks. The named
plaintiffs purported to bring the claims as collective actions
on behalf of themselves and all other similarly situated
employees pursuant to FLSA § 16(b), 29 U.S.C. § 216(b). 1
1
The complaints also raised class action claims pursuant to
Rule 23 of the Federal Rules of Civil Procedure, and claims
under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1132, and the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964.
The ERISA and RICO claims were dismissed with prejudice.
No Rule 23 class was certified, nor were those dismissals
challenged in the earlier appeal.
4
District Judge Cathy Bissoon conditionally certified
the collective action in Camesi on May 14, 2009, and District
Judge Donetta Ambrose conditionally certified the collective
action in Kuznyetsov on June 1, 2009. Both judges approved
detailed notices to be sent to potential collective action
members. Among other things, the notices advised that, by
consenting to opt in to the suit, an employee would “[j]oin in
this lawsuit,” “[a]wait the outcome,” and “[g]ive up the right
to sue separately.” The notices further provided that “[o]nce
people have had the chance to opt in, the Court will decide
whether people who have opted in may participate in this
collective action. Only people ‘similarly situated’ to the
plaintiffs may participate in this collective action.”
A consent form accompanied the court-approved
notices in Camesi and Kuznyetsov. The consent form
indicated, among other things, that “[u]nless I opt to retain
separate counsel of my own choice and at my own expense, I
hereby . . . authorize the named plaintiffs to make decisions
on my behalf concerning the litigation, the method and
manner of conducting this litigation, and all other matters
pertaining to this lawsuit, including any settlement. . . . .”
Using those forms, more than 3,000 individuals consented to
opt in to the Camesi collective action and more than 800
consented to opt in to the Kuznyetzov collective action. 2
2
Among the many Kuznyetsov opt-in plaintiff consent forms
are those of individuals who will soon re-appear as
participants in the next round of district court litigation, see
infra, including Steven Halle, Wayne Haber, and KatieJo
Bigenho. It appears Senora Tarpley is the sole participant in
5
The parties conducted collective action related
discovery for nearly two years, including expert discovery
and fact discovery of the named plaintiffs and a sample of the
collective action members. The District Judges then
entertained cross-motions by the plaintiffs to certify the
collective actions and by the defendants to decertify the
collective actions.
Both judges decertified the collective actions. In her
opinion decertifying Kuznyetsov, Judge Ambrose described
the basic factual allegations of the claim as follows:
Defendants require Plaintiffs to take daily,
uncompensated meal breaks. To accomplish
this, Defendants adopted a computerized
timekeeping system, called Kronos, that
automatically deducts a thirty minute meal
period from nonexempt employees’ time
records when an employee has worked a shift of
more than five or six hours. If an employee is
unable to take an uninterrupted thirty minute
meal break, the entire thirty minute automatic
deduction may be canceled so that the employee
is paid for the entire meal break. The manner in
which the deduction is cancelled, however,
varied by location, department, shift, and
supervisor.
the current appeal who did not consent to opt in to
Kuznyetsov.
6
Kuznyetsov, No. 2:10-cv-00948, 2011 WL 6372852, at *1
(W.D. Pa. Dec. 20, 2011). Judge Ambrose then concluded
that the plaintiffs’ job duties varied significantly from one
individual to the next, and that those job duties were “highly
relevant in terms of how, why and whether the employees
were compensated properly for missed or interrupted meal
breaks.” Id. at *5. In addition, more than 300 different
individuals supervised the plaintiffs, the supervisors had
individual authority to implement policies as to the meal
deduction, and the supervisors’ practices varied in this regard.
Id. Finally, Judge Ambrose agreed with the defendants’
argument that they would need to present individualized
defenses to establish whether the FLSA was violated as to
each plaintiff, which “could not be generalized among the
824 plaintiffs.” Id. at *6. Judge Bissoon reached similar
conclusions in Camesi. See Camesi v. Univ. of Pittsburgh
Med. Ctr., No. 09-85J, 2011 WL 6372873 (W.D. Pa. Dec. 20,
2011).
Thus, both judges concluded that the opt-in plaintiffs
were not “similarly situated” to the named plaintiffs. When
they decertified the two collective actions, the judges also
dismissed the claims of all opt-in plaintiffs without prejudice
to re-filing individual actions.
B.
In an express effort to seek immediate appellate review
of the decertification orders, the named plaintiffs in both
Camesi and Kuznyetsov moved to voluntarily dismiss their
claims with prejudice pursuant to Rule 41(a) of the Federal
Rules of Civil Procedure. The two district judges granted the
7
motions and the named plaintiffs promptly filed notices of
appeal. This court consolidated the two appeals. In Camesi
v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239 (3d Cir. 2013),
we dismissed the appeals for lack of jurisdiction.
First, we determined that a decertification order, like a
class certification order in the Rule 23 context, is an
interlocutory order that is not appealable under 28 U.S.C.
§ 1291. Id. at 245. Then, relying on our class action decision
in Sullivan v. Pac. Indem. Co., 566 F.2d 444 (3d Cir. 1977),
which we found to be controlling, we determined that the
named plaintiffs in Camesi and Kuznyetsov improperly had
attempted to short-circuit the procedure for appealing an
interlocutory order that is separate from, and unrelated to, the
merits of their case. Camesi, 729 F.3d at 245. We explained
that the named plaintiffs could have obtained appellate review
of the decertification decision by proceeding to a final
judgment on the merits of their individual claims or, in the
alternative, by seeking permission to certify an interlocutory
appeal under 28 U.S.C. § 1292(b). Instead, plaintiffs
attempted to manufacture finality through a voluntary
dismissal of their cases. We rejected this “procedural sleight-
of-hand.” Id.
We further determined that, by voluntarily dismissing
their claims with prejudice, the named plaintiffs mooted their
claims in Camesi and Kuznyetsov. Id. at 247. In doing so, the
named plaintiffs extinguished any residual representational
interest they may once have had in bringing claims on behalf
of individuals who had filed consents to opt in to the
collective action. Id. We did not then address the more
difficult question of whether, when individuals have opted in
8
to a collective action following conditional certification, a
plaintiff who has filed the collective action may retain a
justiciable interest in the litigation based only upon his or her
representative capacity. Instead, we concluded that, in the
specific circumstance of a voluntary dismissal, “it would be
anomalous to conclude that [the Camesi/Kuznyetsov]
Appellants are ‘similarly situated’ to opt-in plaintiffs who,
unlike Appellants, have actually retained their individual
claims. Without any personal stake in the matter, [the
Camesi/Kuznyetsov] Appellants should not be permitted to
represent opt-in plaintiffs.” Id.
We therefore dismissed Camesi for lack of appellate
jurisdiction.
9
C.
Soon after we issued our Camesi opinion, the next
round of district court litigation began. The same law firm
that represented the Camesi/Kuznyetsov plaintiffs filed two
new FLSA collective action complaints on behalf of two new
sets of named plaintiffs against the same hospital defendants,
raising substantially the same FLSA claims concerning work
during unpaid meal breaks. The new complaints proposed
slightly different definitions of the collective actions than had
been proposed in Camesi and Kuznyetsov. The follow-up to
Camesi was Belle v. Univ. of Pittsburgh Med. Ctr., No. 2:13-
cv-01448 (W.D. Pa.), while the follow-up to Kuznyetsov was
Halle v. West Penn Allegheny Health Sys., No. 2:13-cv-01449
(W.D. Pa.). Both cases were assigned to Judge Bissoon, who
had presided over Camesi.
In Belle, before the named plaintiffs filed a motion to
conditionally certify a collective action, more than 900
individuals filed consents to opt in. The defendants moved to
dismiss the collective action allegations on grounds of issue
preclusion, arguing that the issue of certification of the
collective action had been fully litigated in Camesi and
should not be relitigated in Belle.
Judge Bissoon agreed. By order dated September 29,
2014, she concluded that, despite minor “tweak[s],” Belle was
a “redux” of Camesi in which the “theories of liability
remain[ed] materially unchanged.” Belle, No. 2:13-cv-01448,
2014 WL 4828899 at *1 (W.D. Pa. Sept. 29, 2014). She
therefore queried whether it would be proper to allow the
Camesi opt-ins to re-litigate the unfavorable decertification
10
ruling in Camesi through a new lawsuit. She concluded,
invoking the doctrine of issue preclusion, that “[t]he answer
to this question is, resoundingly, ‘no.’” Id.
Specifically, Judge Bissoon determined that issue
preclusion applied because decertification already had been
litigated in Camesi, the decision in Camesi was sufficiently
final for purposes of issue preclusion, and all the named
plaintiffs in Belle had opted in to Camesi and thus had a full
and fair opportunity to litigate the issue. 3 Accordingly, she
granted the defendants’ motion to dismiss, struck the
collective action allegations from the complaint, and
dismissed the claims of the opt-in plaintiffs without prejudice
to re-filing individual complaints. The named Belle plaintiffs
subsequently accepted offers of judgment under Rule 68 of
the Federal Rules of Civil Procedure. No appeal followed.
As in Belle, numerous individuals (more than 250)
filed consents to opt in to Halle before Judge Bissoon had an
opportunity to address whether a collective action should be
conditionally certified. Also as in Belle, the defendants filed
a motion to dismiss the collective action allegations on the
ground of issue preclusion. On November 6, 2014, Judge
Bissoon granted the motion, incorporating by reference her
opinion on issue preclusion in Belle. See Halle v. W. Penn
3
Judge Bissoon also observed that, although a “scant
number” of Belle opt-ins had not participated in Camesi (less
than 5% of them), principles of privity would extend the issue
preclusion bar to those in Belle who had not opted in to
Camesi.
11
Allegheny Health Sys. Inc., No. 2:13-cv-1449-CB (W.D. Pa.
filed Nov. 6, 2014). 4
On July 27, 2015, the sole named plaintiff in Halle,
Steven Halle, accepted an offer of judgment from West Penn
under Rule 68 of the Federal Rules of Civil Procedure in the
amount of $2,392.00 for back pay and liquidated damages.
Consistent with the terms of Halle’s acceptance, Judge
Bissoon entered judgment against West Penn, dismissed
Halle’s claims against the remaining defendants with
prejudice, and administratively closed the case.
Then, three of the Halle opt-in plaintiffs – Senora
Tarpley, KatieJo Bigenho, and Wayne Haber – filed this
appeal. Steven Halle did not appeal and is not participating in
this appeal.
II.
Before turning to the matter before us, we consider a
fundamental question arising from the procedural history of
this case: just what is a “collective action” 5 under the FLSA?
4
Judge Bissoon observed that the “overlap” between
Kuznyetsov and Halle was less than in Camesi/Belle (just less
than 81%, as opposed to slightly more than 95%), but
concluded “this distinction does not modify the Court’s
analyses and conclusions.” Halle v. W. Penn Allegheny
Health Sys. Inc., No. 2:13-cv-1449-CB, slip op. at 1 n.1
(W.D. Pa. filed Nov. 6, 2014).
12
To answer this question, we first look to the relevant
portion of the FLSA, which provides that an action may be
brought “by any one or more employees for and in behalf of
himself or themselves and other employees similarly situated”
and that “[n]o employee shall be a party plaintiff to any such
action unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such
action is brought.” 29 U.S.C. § 216(b). This language raises
more questions than it provides answers. While the first
sentence sounds in representational terms (to proceed “in
behalf of” others “similarly situated”), the second sentence
refers to those who file consents as “party plaintiffs,” seeming
to imply that all who affirmatively choose to become
participants have an equal, individual stake in the proceeding.
Congress has not acted to shed light on any of these
provisions. Since the statute was enacted in its current form
in 1947, 6 Congress has provided no framework setting forth
how and when it is to be determined whether employees are
“similarly situated,” the significance of “party plaintiff”
status, or – most relevant to the parties here –who may appeal
5
Although the statute does not employ the phrase “collective
action,” the term appears in the FLSA’s legislative history,
see H.R. Rep. No. 80-326, at 13 (1947) (Conf. Rep.), and is
accepted as the appropriate designation for the type of
representative action described in FLSA § 216(b).
6
Further, Congress added the “opt-in” provision, setting forth
that “no employee shall be a party plaintiff to any such action
unless he gives his consent in writing. . . .” See H.R. Rep.
No. 80-326, at 13 (1947) (Conf. Rep.).
13
a collective action determination and when that appeal may
be taken. Nor have procedural rules been promulgated to
guide courts and parties in processing collective actions. As a
result, courts have been left to consider these matters when
they arise, frequently borrowing or adapting procedures,
concepts, and nomenclature from the Rule 23 class action
context, while recognizing that there remain important
differences between a Rule 23 class action and a collective
action. Compare 7B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1807 (3d ed. 2016)
(“[C]ollective actions behave in many ways like Rule 23 class
actions . . . .”) with Genesis Healthcare Corp. v. Symczyk, 133
S. Ct. 1523, 1529 (2013) (distinguishing class action cases
because “Rule 23 class actions are fundamentally different
from collective actions under the FLSA . . .” (citation
omitted)); see also, e.g., Cameron-Grant v. Maxim
Healthcare Svcs., Inc., 347 F.3d 1240, 1249 (11th Cir. 2003)
(“[Section] 216(b) is a fundamentally different creature than
the Rule 23 class action.”). Indeed, we have recognized an
unfortunate side effect of the often blurred lines between the
two types of proceedings: “expedient adoption of Rule 23
terminology with no mooring in the statutory text of § 216(b)
may have injected a measure of confusion into the wider body
of FLSA jurisprudence.” Symczyk v. Genesis Healthcare
Corp., 656 F.3d 189, 194 (3d Cir. 2011), rev’d on other
grounds by 133 S. Ct. 1523.
To focus, then, on what a collective action is and is
not, we first observe the unremarkable fact that an FLSA
collective action is a form of group litigation in which a
named employee plaintiff or plaintiffs file a complaint “in
14
behalf of” a group of other, initially unnamed employees who
purport to be “similarly situated” to the named plaintiff.
Thus, via § 216(b), the FLSA provides a vehicle for
managing claims of multiple employees against a single
employer. By permitting employees to proceed collectively,
the FLSA provides employees the advantages of pooling
resources and lowering individual costs so that those with
relatively small claims may pursue relief where individual
litigation might otherwise be cost-prohibitive. It also yields
efficiencies for the judicial system through resolution in one
proceeding of common issues arising from the same allegedly
wrongful activity affecting numerous individuals. See
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170
(1989); see also 1 Joseph M. McLaughlin, McLaughlin on
Class Actions § 2:16 (12th ed. 2015) (“The purpose of a
collective action under the FLSA is to allow plaintiffs to
minimize individual expense in pursuing wage rights through
pooled resources and to benefit the judicial system through
unitary resolution of common legal and factual issues arising
from the same conduct.”).
When a named plaintiff files a complaint containing
FLSA collective action allegations, the mere presence of the
allegations does not automatically give rise to the kind of
aggregate litigation provided for in Rule 23. Rather, the
existence of a collective action depends upon the affirmative
participation of opt-in plaintiffs. See Smith v. T-Mobile USA,
Inc., 570 F.3d 1119, 1121 (9th Cir. 2009); Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008).
Courts are then called upon to decide whether those who
purport to join the collective action are “similarly situated” as
15
intended by the statute. Because there are no formal
procedural rules that mandate how to accomplish this task,
courts have developed a practical approach to managing
FLSA collective actions. This approach, which has been
recognized by the Supreme Court and is widely accepted in
most jurisdictions, is a two-step certification process. 7 See
Genesis Healthcare, 133 S. Ct. at 1530; Zavala v. Wal Mart
Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012).
The first step, so-called conditional certification,
requires a named plaintiff to make a “modest factual
showing” – something beyond mere speculation – to
demonstrate a factual nexus between the manner in which the
employer’s alleged policy affected him or her and the manner
in which it affected the proposed collective action members.
Zavala, 691 F.3d at 536 n. 4. The “sole consequence” of
conditional certification is the dissemination of court-
approved notice to potential collective action members.
Genesis Healthcare, 133 S. Ct. at 1530. Conditional
certification, therefore, is not a true certification, but rather an
exercise of a district court’s discretionary authority to oversee
7
A minority of courts has rejected the two-step certification
approach in favor of a more traditional Rule 23-style analysis,
considering numerosity, commonality, typicality, and
adequacy of representation. See 1 Joseph M. McLaughlin,
McLaughlin on Class Actions § 2:16 & n.74 (13th ed. 2013).
We rejected that approach in Zavala v. Wal Mart Stores Inc.,
691 F.3d 527, 536 (3d Cir. 2012).
16
and facilitate the notice process. Zavala, 691 F.3d at 536
(citing Hoffman-La Roche v. Sperling, 493 U.S. 165 (1989) 8).
While conditional certification is discretionary, the
Supreme Court has recognized its importance. A district
court’s early intervention in the preparation and distribution
of notice to potential participants serves legitimate purposes,
including avoidance of a multiplicity of duplicative suits and
establishing cut-off dates to expedite disposition of the action.
Hoffman-La Roche, 493 U.S. at 171-72. Nevertheless,
“[w]hatever significance ‘conditional certification’ may have
in § 216(b) proceedings, it is not tantamount to class
certification under Rule 23.” Genesis Healthcare, 133 S. Ct.
at 1532.
A denial at the conditional certification stage is not
necessarily a final determination of whether the matter may
proceed as a collective action. Some courts permit the issue
to be revisited after discovery or efforts by the named
plaintiff to re-define the contours of the proposed collective
action. See, e.g., Bamgbose v. Delta-T Group, Inc., 724 F.
Supp. 2d 510, 514 (E.D. Pa. 2010) (motion for conditional
certification denied without prejudice, to be revisited after
discovery for possibility of developing “subclasses’); see also
Wright & Miller, supra, § 1807 (“If conditional certification
is denied, the court may allow discovery to provide plaintiffs
8
Although Hoffman-La Roche arose in the context of a
proceeding under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, the ADEA incorporates
enforcement provisions of the FLSA, including the collective
action provisions of 29 U.S.C. § 216(b).
17
a second opportunity to obtain sufficient evidence of a
collective to warrant conditional certification and the notice
to opt in.”).
Generally, after conditional certification has been
granted (although not always, given the discretionary nature
of the first stage), individuals file notices providing their
written consent to participate in the collective action pursuant
to § 216(b). 9 As in Kuznyetsov and Halle, the notices may
indicate that the opt-in plaintiffs consent to having the named
plaintiffs litigate, on their behalf, the FLSA claims. See, e.g.,
Prickett v. DeKalb County, 349 F.3d 1294, 1297 (11th Cir.
9
Some courts refer to the process of opting in to a collective
action as “joinder.” See Grayson v. K Mart Corp., 79 F.3d
1086, 1096 (11th Cir. 1996) (Garth, J.) (referring to a
certification of an ADEA collective action as “permitting opt-
in joinder of ‘similarly situated’ plaintiffs”). But opt-in
plaintiffs are held to a lesser standard than FLSA named
plaintiffs or other plaintiffs who join in civil actions. For
instance, ADEA opt-in plaintiffs do not need to exhaust
administrative remedies, while ADEA named plaintiffs do.
See Lusardi v. Lechner, 855 F.2d 1062, 1078 (3d Cir. 1988)
(recognizing that “in other contexts the opt-in class action has
been analogized to permissive joinder and intervention” but
concluding that opt-ins in ADEA suit need not satisfy
exhaustion requirements where named plaintiffs have done
so). Moreover, opt-in plaintiffs are held to a less stringent
standard than under Rule 20 of the Federal Rules of Civil
Procedure. See Grayson, 79 F.3d at 1096-97.
18
2003) (“The consent given was for the named plaintiffs to
represent the interests of the employee in adjudicating all
claims that the employee had under the FLSA.”).
This “opt-in” requirement – mandating that each
individual must file an affirmative consent to join the
collective action – is the most conspicuous difference
between the FLSA collective action device and a class action
under Rule 23. See De Asencio v. Tyson Foods, Inc., 342
F.3d 301, 306 (3d Cir. 2003). “This difference means that
every plaintiff who opts in to a collective action has party
status, whereas unnamed class members in Rule 23 class
actions do not.” Wright & Miller, supra, § 1807; see also
Prickett, 349 F.3d at 1297 (“[B]y referring to them as ‘party
plaintiff[s],’ Congress indicated that opt-in plaintiffs should
have the same status in relation to the claims of the lawsuit as
the named plaintiffs.”). This prompts the as-yet unanswered
question of what “party status” means in a collective action,
particularly before a district court has considered whether
those who have filed consent forms are in fact “similarly
situated” to the named plaintiff for purposes of § 216(b). 10
10
Notably, § 216(b) is written in the negative, providing that
“[n]o employee shall be a party plaintiff to any such action
unless he gives his consent in writing to become such a party
and such consent is filed in the court in which such action is
brought.” Thus, the statute establishes that it is, at a
minimum, necessary to file a written consent in order to
become a party-plaintiff, but it is silent as to whether filing
such a consent, without more, is sufficient to confer that
status.
19
Also after a grant of conditional certification, the
parties conduct certification-related discovery, as they did in
Camesi and Kuznyetsov. Initial discovery may include efforts
by the named plaintiffs to obtain employee contact
information for purposes of notifying potential collective
action members of the pending matter. Once opt-in consents
have been filed, discovery typically moves forward to assess
whether the opt-ins are “similarly situated” to the named
plaintiffs. Frequently, this discovery focuses on the named
plaintiffs and a subset of the collective group. In Camesi, for
instance, the parties agreed to conduct discovery regarding 75
current and former employees to be chosen by the defendants,
including 10 depositions and the completion of written
questionnaires. Camesi, No. 3:09-cv-00085, 2011 WL
6372873 at *2 (W.D. Pa. Dec. 20, 2011). Similarly, in
Kuznyetsov the parties conducted discovery as to “18 sample
Plaintiffs.” Kuznyetsov, 2011 WL 6372852 at * 4. See also,
e.g., Lusardi v. Xerox Corp., 975 F.2d 964, 967 (3d Cir.
1992) (in ADEA collective action, parties randomly selected
51 out of the 1,312 conditional collective action members for
discovery to determine whether all opt-ins were similarly
situated to the named plaintiffs). Upon conclusion of
discovery, the parties will file motions seeking final
certification or decertification of the collective action.
At this stage, known as final certification, the named
plaintiffs bear the burden of showing that the opt-in plaintiffs
are “similarly situated” to them for FLSA purposes. Zavala,
691 F.3d at 537; see also Bouaphakeo v. Tyson Foods, Inc.,
765 F.3d 791, 801 (8th Cir. 2014) aff’d, 136 S. Ct. 1036
(2016); O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567,
20
584 (6th Cir. 2009), abrogated on other grounds by
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016).
“Being ‘similarly situated’ . . . means that one is subjected to
some common employer practice that, if proved, would help
demonstrate a violation of the FLSA.” Zavala, 691 F.3d at
538.
Courts will consider a variety of factors in reaching
this determination. “These include the factual and
employment settings of the individual plaintiffs, the different
defenses to which the plaintiffs may be subject on an
individual basis, the degree of fairness and procedural impact
of certifying the action as a collective action, and whether
plaintiffs have made the appropriate filings with the EEOC.”
Wright & Miller, supra, § 1807. Our Court endorses an ad
hoc approach to this analysis, considering all relevant factors
and making a determination on a case-by-case basis as to
whether the named plaintiffs have satisfied this burden by a
preponderance of the evidence. Zavala, 691 F.3d at 536-37.
If a collective action is decertified at the final stage,
the matter will proceed as in Camesi and Kuznyetzov: the
court will decertify the class, dismiss the opt-in plaintiffs
without prejudice, and permit the named plaintiffs to proceed
to trial. 11 See Lusardi v. Lechner, 855 F.2d 1062, 1079 (3d
11
While a dismissed opt-in plaintiff retains the ability to
pursue individual claims after a district court decertifies a
collective action, we have located no authority (nor have the
parties cited any) discussing the approach taken by Steven
Halle in the underlying case here – namely, his decision, upon
dismissal without prejudice from Kuznyetsov, to re-file not
21
Cir. 1988) (“A district court has no power or jurisdiction to
rule on the merits of the claims of individual [opt-in]
members of a putative opt-in class when it denies
certification.”); see also Wright & Miller, supra, § 1807. If,
however, final certification is granted, “the action proceeds to
trial on a representative basis.” Id. As previously discussed,
a decision on certification of a collective action is
interlocutory and therefore not immediately appealable
pursuant to § 1291. Camesi, 729 F.3d at 245.
only his individual claims, but also to try to resurrect
substantially similar collective action allegations.
22
III.
With this understanding of the FLSA collective action
device, we turn to the appeal before us. The District Court
exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291 to review “final
decisions” of district courts. Giles v. Campbell, 698 F.3d
153, 157 (3d Cir. 2012). A final decision is one that “ends
the litigation on the merits and leaves nothing for the court to
do but execute the judgment.” Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 712 (1996) (quoting Catlin v. United
States, 324 U.S. 229, 233 (1945)). Although the parties did
not raise the issue, we must satisfy ourselves of our
jurisdiction over this appeal. 12 See Emp’rs Ins. of Wausau v.
Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990).
In the end, Appellants, three opt-in plaintiffs, were
dismissed without prejudice from Halle’s case and lost no
substantive or procedural rights. Therefore, they have no
final order from which to appeal. This conclusion is
reinforced both by the language of their opt-in consent forms,
which handed over all litigation authority to named plaintiff
Steven Halle, and by the opt-in plaintiffs’ passive role in the
suit. While it may seem unfair to require the opt-in plaintiffs
either to litigate a case to conclusion or certify an
interlocutory appeal, finality – not unsupported assertions
about fairness – defines our court’s jurisdiction.
12
Because the parties’ briefs give rise to doubts concerning
our ability to exercise appellate jurisdiction, we directed the
parties to file supplemental briefs on this issue.
23
A.
Appellants seek review of Judge Bissoon’s order dated
November 6, 2014. That order had two important effects: it
dismissed Steven Halle’s collective action allegations with
prejudice on the ground of issue preclusion, and it also
dismissed 13 the claims of the opt-in plaintiffs without
prejudice to re-filing individual actions. Neither of these
aspects of Judge Bissoon’s order constitutes a final,
appealable decision for purposes of 28 U.S.C. § 1291.
The dismissal of the opt-in plaintiffs’ claims without
prejudice is not a final decision for purposes of § 1291. All
opt-in plaintiffs may pursue their FLSA claims. “Typically a
dismissal without prejudice is not a final decision because the
plaintiff may refile the complaint, thereby creating the risk of
‘piecemeal’ appellate litigation.” S.B. v. Kindercare Learning
Ctrs., LLC, 815 F.3d 150, 152 (3d Cir. 2016); see also Borelli
v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976)
(“Generally, an order which dismisses a complaint without
prejudice is neither final nor appealable because the
deficiency may be corrected by the plaintiff without affecting
the cause of action.”). The November 6, 2014 order does not
resolve any of the opt-in plaintiffs’ claims on the merits and
acknowledges that those individuals remain free to file their
own FLSA actions.
13
Although the order states that the opt-in claims were
“denied,” a denial implies a decision on the merits of the
claim. Because Judge Bissoon did not reach the merits of the
opt-in plaintiffs’ claims, for clarity we refer to the claims as
dismissed.
24
In addition, the dismissal of Halle’s collective action
allegations is not a final, appealable decision under § 1291.
Although that decision arose in the context of a motion to
dismiss rather than a motion to decertify, it results in a
complaint that no longer alleges a collective action. Our
decision in Camesi therefore controls: such an order is
interlocutory and does not provide a basis for an immediate
appeal under § 1291. 14 Camesi, 729 F.3d at 245; see also,
e.g., In re: Complaint of Ingram Barge Co., 517 F.3d 246,
247 (5th Cir. 2008) (per curiam) (holding that the court did
not have appellate jurisdiction under § 1291 or § 1292(a)(3)
because the district court’s order striking class action
allegations did not settle parties’ rights). Because the
decertification is separate from, and unrelated to, the merits of
Halle’s individual case, in the absence of a district court order
under 28 U.S.C. § 1292(b) permitting an immediate appeal
(which Halle did not request and which Judge Bissoon
therefore did not grant), appellate review of this interlocutory
decertification decision is available by proceeding to a final
judgment on the merits of Halle’s individual claims. See
Camesi, 729 F.3d at 245.
14
Similarly, in the context of class actions, prior to the 1998
amendments to Rule 23(f) that today permit parties to pursue
immediate review of certification decisions, decisions
decertifying a class had to await review until the plaintiff
obtained a final judgment in the case – even if proceeding as
an individual rather than as part of a larger group might mean
the “death knell” for the action. Coopers & Lybrand v.
Livesay, 437 U.S. 463, 471 (1978).
25
Appellants concede that the November 6 order was not
appealable when Judge Bissoon entered it, and they did not
appeal at that time. Instead, they waited to appeal until after
Steven Halle accepted West Penn’s offer of judgment in full
satisfaction of his individual claims.
B.
On July 27, 2015, Judge Bissoon entered judgment
consistent with Halle’s acceptance of West Penn’s offer of
judgment, dismissed Halle’s remaining claims against the
other defendants with prejudice, and administratively closed
the case. This, Appellants argue, constitutes a final decision
for purposes of § 1291, and, for appeal purposes, merges with
all prior decisions in the case, including the November 6,
2014, decertification decision. See In re: Westinghouse Sec.
Litig., 90 F.3d 696, 706 (3d Cir. 1996) (“Under the ‘merger
rule,’ prior interlocutory orders merge with the final judgment
in a case, and the interlocutory orders (to the extent that they
affect the final judgment) may be reviewed on appeal from
the final order.” (citations omitted)).
West Penn argues that Halle’s acceptance of an offer
of judgment operates like the voluntary dismissal in Camesi:
it moots Halle’s personal claims and extinguishes his
representational interest in proceeding on behalf of the opt-in
plaintiffs. While this area of the law is “in a state of flux,”
Camesi, 729 F.3d at 247, 15 we need not reach that issue
15
Compare U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,
400 (1980) (holding that, in the Rule 23 class action context,
named plaintiff may appeal a denial of class certification even
26
because Halle did not file this appeal. Instead, in some
procedural gymnastics apparently aimed at avoiding the
mootness issue, three opt-in plaintiffs – Senora Tarpley,
KatieJo Bigenho, and Wayne Haber – filed this appeal on
behalf of themselves and “all other opt-in plaintiffs whose
claims were dismissed.”
C.
We must, therefore, consider whether Appellants
retained a stake in Steven Halle’s ongoing individual case
such that they are entitled to pursue an appeal as of right at its
conclusion, after Halle’s individual claims have become
if his or her individual claims had been satisfied through the
entry of judgment), with Genesis Healthcare, 133 S. Ct. at
1529 (distinguishing Geraghty to hold that, prior to any
individuals opting in, mooting the named plaintiff’s claims
moots the entire suit); Cameron-Grant, 347 F.3d at 1249
(“[A] § 216(b) plaintiff . . . presents only a claim on the
merits . . . [and] has no claim that he is entitled to represent
other plaintiffs.”); Lusardi v. Xerox Corp., 975 F.2d at 974
(comparing collective actions to class actions and observing
that “[n]ormally, when claims of the named plaintiffs become
moot before class certification, dismissal of the action is
required”); Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1123
(9th Cir. 2009) (“Because the plaintiffs voluntarily settled all
of their claims after the district court’s denial of certification,
they have failed to retain a personal stake in the litigation and
their case is moot.”).
27
moot. 16 We conclude that, for purposes of appeal, Appellants
were no longer “parties” to the case after they were dismissed
without prejudice from Halle’s proceeding. See Devlin v.
Scardelletti, 536 U.S. 1, 7-8 (2002) (an appeal of a class
action settlement by an unnamed class member does not raise
concerns of standing, but rather “[w]hat is at issue, instead, is
whether petitioner should be considered a ‘party’ for the
purposes of appealing.”). Appellants therefore cannot pursue
an appeal from Steven Halle’s individual judgment.
In Devlin, the Supreme Court concluded that an
unnamed member of a Rule 23 class action who was affected
by, and had objected to, the settlement of a class action during
a hearing pursuant to Rule 23(e) of the Federal Rules of Civil
Procedure had the right, as a party to the action, to appeal the
settlement without first filing a motion for leave to intervene.
The Supreme Court held that “[w]hat is most important to this
case is that nonnamed class members are parties to the
16
Appellants did not actively participate in the proceeding at
any time prior to their notice of appeal. For example, when
Steven Halle accepted judgment, Appellants did not move to
intervene and substitute themselves as named plaintiffs in
Steven Halle’s stead. Thus, we need not consider whether
such efforts might have been sufficient to keep the case
“alive” for purposes of appealing the dismissal of the
collective action allegations. See, e.g., Lusardi, 975 F.2d at
984-85 (discussing unsuccessful efforts of opt-in plaintiffs to
intervene in decertified collective action after named
plaintiffs’ claims were extinguished).
28
proceedings in the sense of being bound by the settlement.”
Devlin, 536 U.S. at 10.
The opt-in plaintiffs here stand in contrast to the
unnamed Rule 23 class member bound by a class action
settlement as described in Devlin. The opt-in plaintiffs were
dismissed without prejudice when the collective action
allegations were struck from the complaint and are not bound
by any aspect of the judgment that was ultimately entered in
Steven Halle’s case. Consequently, they are not subject to a
final decision disposing of their rights from which they may
file an appeal under § 1291. See id. at 14 (“[N]o federal
statute or procedural rule directly addresses the question of
who may appeal from approval of class action settlements,
while the right to appeal from an action that finally disposes
of one’s rights has a statutory basis.” (citing 28 U.S.C. §
1291)).
Even if, after Judge Bissoon dismissed the collective
action allegations, Steven Halle retained some residual right
to represent “similarly situated” employees, any such residual
right does not extend to the opt-in plaintiffs. The opt-in
plaintiffs retained their own substantive FLSA claims and
remain free to file such claims and pursue final judgments on
the merits. “While [a named plaintiff’s] settlement may have
the collateral effect of foreclosing unjoined claimants from
having their rights vindicated in respondent’s suit, such
putative plaintiffs remain free to vindicate their rights in their
own suits. They are no less able to have their claims settled
or adjudicated following respondent’s suit than if her suit has
never been filed at all.” Genesis Healthcare, 133 S. Ct. at
1531.
29
When the opt-in plaintiffs were dismissed without
prejudice, they did not suffer an adverse judgment on the
merits of any claim. They lost nothing but the ability to
proceed in Halle’s case. This does not give rise to a right to
pursue an appeal from Halle’s individual final judgment. See
McLaughlin v. Pernsley, 876 F2d 308, 313 (3d Cir. 1989)
(where district court’s order does not affect a legally
cognizable interest of appellant, appeal will be dismissed for
lack of standing); In re: Glenn W. Turner Enter. Litig., 521
F.2d 775, 781 (3d Cir. 1975) (“A party may appeal only if he
is aggrieved by the judgment or the order of the district
court.”).
Our understanding of the representative nature of
FLSA collective actions is consistent with our conclusion that
the opt-in plaintiffs cannot pursue this appeal. Steven Halle
filed this proceeding, representing both himself and others
“similarly situated.” Halle alone litigated in that
representational role: after filing the complaint, he raised and
responded to motions, participated in alternative dispute
resolution, and actively engaged in the litigation process. The
opt-in plaintiffs were mere passive observers until they were
struck from the proceeding entirely.
When they opted to benefit from the efficiencies of
participating in a collective action, these individuals agreed to
set aside the individual authority to litigate, including the
ability to appeal. Each of the opt-in plaintiffs’ consent forms
stated, “I hereby . . . authorize and designate the named
plaintiffs to act on my behalf concerning the litigation, this
investigation, consideration of settlement and attorneys’ fees
and costs, and all other matters pertaining to this lawsuit.” To
30
the extent that the Appellants could have appealed – and we
hold above that they could not – this language waived their
right to do so. Cf. Prickett, 349 F.3d at 1297 (relying on “the
language of the consent forms that the opt-in plaintiffs signed
in this case” to determine which rights opt-in plaintiffs
delegated to the named plaintiffs). By consenting to join
Halle’s collective action, these opt-in plaintiffs ceded to Halle
the ability to act on their behalf in all matters, including the
ability to pursue this appeal.
D.
Appellants do not identify a single case in which a
Court of Appeals has exercised jurisdiction over an appeal
remotely similar to this one – in which a collective action opt-
in plaintiff seeks appellate review of a decision striking
collective action allegations from a complaint and where the
named plaintiff’s claims are moot. Appellants are subject to a
non-final order dismissing their claims without prejudice, and
they offer no clear basis for the exercise of appellate
jurisdiction. Rather, they advocate that, as a matter of
fairness, this Court should exercise jurisdiction over this
appeal.
Appellants contend it would be unfair to dismiss this
appeal because it leaves the opt-in plaintiffs without an
opportunity to obtain appellate review of Judge Bissoon’s
decision to dismiss the collective allegations from Halle’s
complaint now that West Penn has “picked off” Halle by
31
offering him a Rule 68 judgment which mooted his claims. 17
It is true that we have observed the practical concern that the
opt-in plaintiffs raise – namely, that offers of judgment, like
the offer Halle accepted, are used by defendants to
strategically “pick off” named plaintiffs prior to certification
(or, here, appellate review of certification-related decisions),
and may thereby result in the frustration of the collective
action vehicle. See Symczyk, 656 F.3d at 197-98.
When the Supreme Court considered this argument,
the potential for unfairness did not affect its determination
that, where the named plaintiff’s Rule 68 judgment mooted
her claims, the Court was deprived of jurisdiction. Genesis
Healthcare, 133 S. Ct. at 1531. Similarly here, fairness
considerations do not undermine our fundamental conclusion
that the opt-in plaintiffs lack a final decision that we may
review under § 1291.
And any perceived unfairness is tempered by the fact
that, in Camesi, the panel set forth a path for pursuing review
of FLSA collective action certification decisions. We here
echo that point: to obtain appellate review of an order
17
During oral argument, Appellants attempted to argue for
the first time that an inability to obtain merits review in this
appeal would amount to a deprivation of their constitutional
right to due process. “An appellant waives an argument in
support of reversal if he does not raise that argument in his
opening brief.” AT & T Inc. v. FCC, 582 F.3d 490, 495 (3d
Cir. 2009) (citation omitted), rev’d on other grounds, 562
U.S. 397 (2011). Because the constitutional claim was not
presented in Appellants’ opening brief, it is waived.
32
decertifying a collective action, the plaintiff must either
proceed to a final judgment on the merits of his or her
individual claims or seek the District Court’s permission to
pursue an immediate appeal. Camesi, 729 F.3d at 245.
Appellants have pursued neither course. It should, therefore,
be unsurprising that they face dismissal for lack of appellate
jurisdiction.
IV.
For the foregoing reasons, we lack jurisdiction over
this appeal. Accordingly, it will be dismissed.
33