McElmurry v. U.S. Bank Nat. Ass'n

• Decision Date: 08 August 2007
• Docket Number: No. 05-76425.,No. 05-36047.,05-36047.,05-76425.
• Citation: McElmurry v. U.S. Bank Nat. Ass'n, 495 F.3d 1136 (9th Cir. 2007)
• Parties: Keri McELMURRY; Karen Mrazek, individual and on behalf of all similarly situated, Plaintiffs-Appellants, v. U.S. BANK NATIONAL ASSOCIATION, and its affiliates and subsidiaries, Defendant-Appellee, and Does 1-25, Defendant. 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, Petitioners, v. United States District Court for the District of Oregon, Respondent, U.S. Bank National Association, and its affiliates and subsidiaries; Does 1-25, Real Parties in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

495 F.3d 1136

Keri McELMURRY; Karen Mrazek, individual and on behalf of all similarly situated, Plaintiffs-Appellants, v. U.S. BANK NATIONAL ASSOCIATION, and its affiliates and subsidiaries, Defendant-Appellee, and Does 1-25, Defendant.

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, Petitioners, v. United States District Court for the District of Oregon, Respondent, U.S. Bank National Association, and its affiliates and subsidiaries; Does 1-25, Real Parties in Interest.

No. 05-36047.

No. 05-76425.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2007.

Filed August 8, 2007.

Jacqueline L. Koch, Koch & Deering, Portland, OR, for the petitioners.

Timothy R. Volpert and Christopher McCracken, Davis Wright Tremaine LLP, Portland, OR, for the respondent.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-04-00642-DJH.

Petition for Writ of Mandamus to the United States District Court for the District of Oregon.

Before: D.W. NELSON, ANDREW J. KLEINFELD, and JAY S. BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

Plaintiffs-Appellants Keri McElmurry and Karen Mrazek bring this interlocutory appeal from a district court order 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 unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (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 complaint, 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 generally CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, 7B FED. PRAC. & PROC. § 1807 (3d ed.2005). In a class 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 Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (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-La Roche, 493 U.S. at 173, 110 S.Ct. 482. Although § 216(b) does not require district courts to approve or authorize notice to potential plaintiffs, the Supreme Court held in Hoffmann-La Roche that it is "within the discretion of a district court" to authorize such notice. Id. at 171, 110 S.Ct. 482; 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 Appellants' 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

The threshold issue is whether we have appellate jurisdiction over the district court's order denying Appellants' motion for notice to putative class members. The order is not 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, 69 S.Ct. 1221.

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, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Jurisdiction exists in only a "small class" of cases that are deemed "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, 337 U.S. at 546, 69 S.Ct. 1221. To qualify as a collateral order suitable for appellate review, an order must: 1) "conclusively determine the disputed question"; 2) "resolve an important issue completely 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 & Lybrand, 437 U.S. at 468, 98 S.Ct. 2454). Because collateral jurisdiction requires all three elements, we lack collateral order jurisdiction if even one is not met. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987).

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 unreviewable 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, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (quoting United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 56 L.Ed.2d 18 (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, 69 S.Ct. 1221. 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, 69 S.Ct. 1221. 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, arguing 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.

Does I thru XXIII, 214 F.3d at 1067.

We cannot see that Appellants will forfeit the opportunity to raise their arguments on an appeal from a final judgment 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 pursue 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...