903 F.3d 1090 (9th Cir. 2018), 15-56990, Campbell v. City of Los Angeles

Docket Nº:15-56990, 16-55002
Citation:903 F.3d 1090
Opinion Judge:BERZON, Circuit Judge
Party Name:Daniel CAMPBELL; et al,[*] Plaintiffs-Appellants, v. CITY OF LOS ANGELES, Defendant-Appellee. Cesar Mata, Plaintiff, and Richard D. Alba; et al., Plaintiffs-Appellants, v. City of Los Angeles, Defendant-Appellee.
Attorney:Gregory Glenn Petersen (argued), Gregory G. Petersen A Law Corporation, Santa Ana, California, for Plaintiffs-Appellants. Brian P. Walter (argued), Geoffrey S. Sheldon, David A. Urban, and Danny Y. Yoo, Liebert Cassidy Whitmore, Los Angeles, California; for Defendant-Appellee.
Judge Panel:Before: Richard Linn, Marsha S. Berzon, and Milan D. Smith, Jr., Circuit Judges.
Case Date:September 13, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1090

903 F.3d 1090 (9th Cir. 2018)

Daniel CAMPBELL; et al,[*] Plaintiffs-Appellants,

v.

CITY OF LOS ANGELES, Defendant-Appellee.

Cesar Mata, Plaintiff, and Richard D. Alba; et al., Plaintiffs-Appellants,

v.

City of Los Angeles, Defendant-Appellee.

Nos. 15-56990, 16-55002

United States Court of Appeals, Ninth Circuit

September 13, 2018

Argued and Submitted November 8, 2017 Pasadena, California

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Appeal from the United States District Court for the Central District of California, Andrew J. Guilford, District Judge, Presiding, D.C. No. 2:04-cv-08592-AG-AJW, D.C. No. 2:07-cv-06782-AG-AJW

Gregory Glenn Petersen (argued), Gregory G. Petersen A Law Corporation, Santa Ana, California, for Plaintiffs-Appellants.

Brian P. Walter (argued), Geoffrey S. Sheldon, David A. Urban, and Danny Y. Yoo, Liebert Cassidy Whitmore, Los Angeles, California; for Defendant-Appellee.

Before: Richard Linn,[**] Marsha S. Berzon, and Milan D. Smith, Jr., Circuit Judges.

SUMMARY[***]

Labor Law

The panel affirmed the district court's decertification of two related collective actions brought under the Fair Labor Standards Act by officers of the Los Angeles Police Department, alleging a pervasive, unwritten policy discouraging the reporting of overtime.

The district court granted the City's motion for decertification and dismissed the officers without prejudice to refiling their FLSA claims individually. The original plaintiffs in the two decertified actions then reached settlements with the City on their own claims, and the district court entered final judgment. Although no longer plaintiffs at that point, the officers filed timely appeals from final judgment, challenging their decertification and dismissal. Agreeing with the Eleventh Circuit, and disagreeing with the Third Circuit, the panel held that the officers had standing to appeal because opt-in plaintiffs are parties to the collective action, and an order of decertification and dismissal disposes of their statutory right to proceed collectively. They therefore have standing to appeal and may do so after the interlocutory decertification order to which they are adverse merges with final judgment.

The panel further held that the collective actions were properly decertified and the officers properly dismissed for failure to satisfy the "similarly situated" requirement of the FLSA. Rejecting other approaches to this requirement, the panel held that party plaintiffs are similarly situated, and may proceed as a collective, to the extent they share a similar issue of law or fact material to the disposition of their FLSA claims. Addressing post-discovery decertification, the panel held that, when decertification overlaps with the merits of the underlying FLSA claims, the summary judgment standard applies. The panel concluded that the officers failed, as a matter of law, to create a triable question of fact regarding the existence of a department-wide policy or practice. In the absence of such a policy or practice, and in the absence of allegations of any other similarity of law or fact material to the disposition of the officers' claims, the officers were not "similarly situated" within the meaning of the FLSA.

OPINION

BERZON, Circuit Judge

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The present appeal arises from the decertification of a pair of related collective actions brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207. Between 2004 and 2009, roughly 2,500 officers ("the Officers") of the Los Angeles Police Department ("the Department") opted into two collective actions alleging a pervasive, unwritten policy discouraging the reporting of overtime. After notice to potential collective action members and several years of discovery, the government defendant, the City of Los Angeles ("the City"), moved for decertification of the collective actions on the ground that the Officers within each were not "similarly situated" within the meaning of section 16(b) of the FLSA, 29 U.S.C. § 216(b). According to the City, if any Officers were denied pay for their earned overtime, it was due to unrelated instances of worksite- and supervisor-specific misconduct, rather than a single, Department-wide policy or practice.

The district court granted the City’s motion for decertification and dismissed the Officers without prejudice to refiling their FLSA claims individually.1 The original plaintiffs in the two decertified actions then reached settlements with the City on their own claims, and the district court entered final judgment. Although no longer plaintiffs at that point, the Officers filed timely appeals from final judgment, challenging their decertification and dismissal.

We are asked first whether the Officers can appeal a decertification order when they were dismissed from the collective action before final judgment and without prejudice to their individual FLSA claims. We hold that they can. Opt-in plaintiffs are parties to the collective action, and an order of decertification and dismissal disposes of their statutory right to proceed collectively. They therefore have standing to appeal and may do so after the interlocutory decertification order to which they are adverse merges with final judgment.

We are asked next whether the collective actions here were properly decertified and the Officers properly dismissed for failure to satisfy the "similarly situated" requirement of the FLSA. We hold that they were. Although the district court erred in its interpretation of the "similarly situated" requirement and in the standard it applied in evaluating decertification, a de novo review of the record reflects that the Officers failed, as a matter of law, to create a triable question of fact regarding the existence of a Department-wide policy or practice. In the absence of such a policy or practice, and in the absence of allegations of any other similarity of law or fact material to the disposition of the Officers’ claims, the Officers were not "similarly situated" within the meaning of the FLSA.

I

Because much of this case turns on terminology and procedures specific to the FLSA, we begin with a brief explanation of 29 U.S.C. § 216(b) and the collective action mechanism that arises from it.2

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The relevant language of section 216(b) is spare: An action to recover the liability prescribed in [this subsection] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No 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. ... The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor ....

29 U.S.C. § 216(b).

It is evident from the statute that workers may litigate jointly if they (1) claim a violation of the FLSA, (2) are "similarly situated," and (3) affirmatively opt in to the joint litigation, in writing. Id. It is evident also that the "right" to litigate jointly has two permutations: The statute refers to "[t]he right ... to bring an action by or on behalf of any employee," and to "the right of any employee to become a party plaintiff to any such action," id. — that is, the right to bring the collective litigation and the right to join it. But the statute specifies little else. It does not prescribe terms for the resulting proceeding. It does not provide a definition of "similarly situated," on which access to the collective mechanism typically turns. It does not establish a process for evaluating the propriety of a collective proceeding as litigation unfolds— for example, it makes no mention of "certification" or "decertification" of a collective action. And it says nothing about the standard the district court should apply when the collective mechanism is challenged.

Given these gaps, much of collective action practice is a product of interstitial judicial lawmaking or ad hoc district court discretion. In particular, although nothing in section 216(b) expressly compels it, it is now the near-universal practice to evaluate the propriety of the collective mechanism— in particular, plaintiffs satisfaction of the "similarly situated"...

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