Reinig v. RBS Citizens, N.A., 912 F.3d 115 (3d Cir. 2018). This was the final published opinion of 2018 for the Third Circuit. Authored by Judge Vanaskie, the opinion reverses an order that granted class certification under Federal Rule of Civil Procedure 23 in this overtime pay dispute. That issue was before the court on an interlocutory appeal under Rule 23(f), which permits Circuit Courts to allow immediate appeals of grants or denials of class certification. The panel also ruled, however, that the doctrine of pendent appellate jurisdiction did not give the Third Circuit the power to review the District Court’s separate certification of a collective action under the Fair Labor Standards Act, 29 U.S.C. §216(b) (“FLSA”).
Applying the abuse of discretion standard that governs review of decisions on class certification, Judge Vanaskie reversed the grant of class certification for two reasons. First, the District Court had not properly “define[d] the class or class claims” as required by Rule 23(c)(1)(B) and cases such as Wachtel v. Guardian Life Ins. Co., 453 F.3d 179 (3d Cir. 2006). Instead, the order granting class certification “merely provided cross-references to Plaintiffs’ First Amended Complaint and [Reports and Recommendations of a Special Master], without defining the specific subclasses or stating which provision of Rule 23 governs the various claims.” Instead of the required “readily discernible” statement defining the classes, the Third Circuit was faced with the unacceptable need to “cobble together … various statements” and “comb the entirety of its text” for “isolated statements that may add up to a partial list of class claims, issues, or defenses.”
Second, the District Court’s opinion did not allow the panel to determine “whether Plaintiffs’ representative evidence is sufficient to satisfy Rule 23’s commonality and preponderance [sic- this probably was meant to be “predominance”] requirements.” Judge Vanaskie remanded the class certification issue to the District Court for a “rigorous examination of the factual and legal allegations underpinning Plaintiffs’ claims before deciding if class certification is appropriate.”
Judge Vanaskie then turned to defendant’s attempt to tack onto its permissible Rule 23(f) appeal of class certification the discrete, non-final FSLA certification order, using the doctrine of pendent appellate jurisdiction. That doctrine allows an appellate court, “in [its] discretion to exercise jurisdiction over issues that are not independently appealable but are intertwined with issues over which [the court] properly and independently exercise[s its] jurisdiction.”
But pendent appellate jurisdiction, Judge Vanaskie said, is used only “sparingly,” and only where there is “sufficient overlap in the facts relevant to both … issues” to justify plenary review.” In short, pendent appellate jurisdiction may be invoked only where there are “inextricably intertwined” orders or where review of an otherwise non-appealable order is necessary to enable meaningful review of an appealable order.
Citing Circuit level authority elsewhere, Judge Vanaskie concluded that “Rule 23 certification is not ‘inextricably intertwined’ with an FLSA collective action certification so as to permit us to exercise pendent appellate jurisdiction over the FLSA certification.” The two are “fundamentally different creatures,” as Judge Vanaskie detailed in his opinion, including in an extraordinarily lengthy footnote near the start of the decision.
Although some of the factors applicable to the two issue “may overlap,” a “mere nexus” between the two was insufficient to trigger pendent appellate jurisdiction. And while some other Courts of Appeal “have treated FLSA and Rule 23 certification as nearly one and the same,” others disagreed. Finally, “expanding the doctrine would serve to undermine the finality rule under 28 U.S.C. §1292(a).” For all those reasons, the panel declined to exercise pendent appellate jurisdiction over the FLSA certification issue.
This opinion, one of Judge Vanaskie’s last rulings before his retirement on January 1, 2019 (he transmitted other opinions to the Clerk before his retirement, and those opinions were not published until today, due to the intervening holiday), well describes the FLSA certification process and the differences between FLSA certification, which leads to an “opt-in” class, and Rule 23 class certification, an “opt-out” process. Practitioners, as well as other judges, will benefit from that analysis.