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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 29, 2005
March 28, 2005
In the
Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-10819
Summary Calendar
_______________
LINDSEY BALDRIDGE; IRIS ELAINE MOSLEY; CINDY OPAITZ; LINDA SAUNDERS;
SUSAN MIMMS; LEROY DURAN; FRANK BRISENO; JAMES BULLS; ROYCE GLENN;
MICHAEL WATKINS; STEVEN MADRID; LINDA SAN PEDRO,
Plaintiffs-Appellees,
VERSUS
SBC COMMUNICATIONS, INC.,
A DELAWARE CORPORATION;
CINGULAR WIRELESS LLC,
A DELAWARE LIMITED LIABILITY COMPANY,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
______________________________

Before DAVIS, SMITH, and DENNIS,
resolve an important issue completely separate
Circuit Judges.
from the merits of the action, and be effec-
tively unreviewable on appeal from a final
JERRY E. SMITH, Circuit Judge:
judgment." Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978). Only "serious and
The defendants seek an interlocutory appeal
unsettled question(s)" come within the mean-
of a class certification order under 29 U.S.C.
ing of the Cohen rule, and it is a strictly con-
§ 216(b), which is part of the Fair Labor
strued doctrine.1
Standards Act ("FLSA"). We dismiss for
want of appellate jurisdiction. The collateral
In Coopers & Lybrand, id. at 469, the
order exception to the final judgment rule is
Court refused to extend the Cohen collateral
inapplicable, because the question of § 216(b)
order doctrine to cover class certification
class certification has not yet been conclusively
questions, finding inter alia that a Federal
determined and is still subject to revision by
Rule of Civil Procedure 23 class certification
the district court.
decision does not conclusively determine the
disputed question, because the order is subject
I.
to revision in the district court. Similarly, in
The plaintiffs, employees of Cingular Wire-
Lusardi v. Xerox Corp., 747 F.2d 174, 175,
less LLC ("Cingular Wireless"), filed an action
177-78 (3d Cir. 1984), the court extended
for overtime pay under the FLSA. After
Coopers & Lybrand to certification decisions
discovery had commenced, the district court
under § 7(b) of the Age Discrimination in
certified the case as a collective action under §
Employment Act of 1967, which incorporates
216(b), then modified the certification by
the language of § 216(b) in establishing its
drastically narrowing the scope of the class.
collective action provisionSSsimilarly finding
The court declined to certify an interlocutory
that the certification order lacked conclusive-
appeal under 28 U.S.C. § 1292(b) and has
ness because it was subject to revision and
scheduled a date to consider a motion for
possible decertification.
decertification of the class.
Just as in Coopers & Lybrand and Lusardi,
II.
the class certification order here is subject to
We are presented with the res nova issue of
revision before the district court addresses the
whether we have appellate jurisdiction over a
merits.2 As we have noted, the court has
§ 216(b) class certification order pursuant to
the "collateral order" exception to the final
judgment rule of 28 U.S.C. § 1291, derived
1 Cohen, 337 U.S. at 547; In re Corrugated
from Cohen v. Beneficial Indus. Loan Corp.,
Container Antitrust Litig., 611 F.2d 86, 89 (5th
337 U.S. 541 (1949). As a threshold matter,
Cir. 1980).
an order conditionally certifying a class and
2
authorizing notice is not a final decision,
Cingular Wireless argues that Coopers & Ly-
terminating the litigation and allowing appeal
brand does not apply because it involved a decision
under § 1291. "To come within the `small
to decertify, rather than certify, a class. Although
it is true that the Court was reviewing a decertifica-
class' of decisions excepted from the final-
tion order, the Court made the broad statement that
judgment rule by Cohen, the order must con-
"[a]n order passing on a request for class certifica-
clusively determine the disputed question,
(continued...)
2

already used its discretion to modify the origi-
ld analyze the application of Cohen to ques-
nal certification order to limit the scope of the
tions of class certification in the absence of
class and has scheduled a date to consider
such a procedural rule or similar legislative
decertification before trial begins.3
enactment. That is the situation with which
The defendants correctly point out that the
we are confrontedSSall we have before us is
holding in Coopers & Lybrand is abrogated to
the final judgment rule of § 1291, the FLSA
the extent that the subsequently enacted Fed-
collective action provision, and Cohen.
eral Rule of Civil Procedure 23(f) specifically
allows for interlocutory review of class certifi-
The defendants also argue at length that we
cation decisions at the discretion of the re-
should look persuasively at the policies behind
spective courts of appeals under rule 23.4 But,
rule 23(f) when analyzing whether the Cohen
as the district court observed, this case in-
doctrine applies to confer jurisdiction over
volves a "garden-variety" § 216(b) FLSA
their attempted appeal. After noting the vast
action and is not a rule 23 class action, so rule
expenses they anticipate in defending this
23(f) is inapplicable.
class action suit, they point to several cases
from other circuits 5 that consider costs and
Although the holding of Coopers &
pressures on the defendant to settle as impor-
Lybrand may have been abrogated by the
tant factors appellate courts should consider in
enactment of rule 23(f), the Court's reasoning
deciding whether to grant interlocutory review
is persuasive of the method by which we shou-
under rule 23(f), based on the committee notes
accompanying the rule.
2(...continued)
Although such policy concerns may be
tion does not fall in [the] category" of "the `small
proper for legislative attention, they are ir-
class' of decisions excepted from the final-judg-
relevant to the issue of whether the Cohen
ment rule by Cohen." Coopers & Lybrand, 437
collateral order exception applies. Coopers &
U.S. at 468-69.
Lybrand, 437 U.S. at 470. Outside the rule 23
context, "[i]f the expense of litigation were a
3 Although the defendants may be correct in
sufficient reason for granting an exception to
noting that the burden of persuasion shifts from
the final judgment rule, the exception might
plaintiffs (to show the merits of certification) to
well swallow the rule." Lusardi, 747 F.2d at
defendants (to show the merits of decertification),
178. Any policy justifications are not relevant
the difference is irrelevant. A decertification deci-
to § 216(b) collective actions in the absence of
sion would be a revision of the original order, so
concerns regarding differing burdens of proof do
an applicable procedural rule or act of Con-
not overcome the overriding interests of the final-
judgment ruleSSpreventing "the hazard [of] piece-
meal appeals [that] burden the efficacious admin-
5 Prado-Steiman v. Bush, 221 F.3d 1266, 1272
istration of justice and unnecessarily protract litiga-
(11th Cir. 2000) ("[A]n appeal ordinarily should be
tion." In re Nissan Motor Corp. Antitrust Litig.,
permitted when the grant of class status raises the
552 F.2d 1088, 1094 (5th Cir. 1977).
stakes of the litigation so substantially that the de-
fendant likely will feel irresistible pressure to set-
4 Moreover, although Lusardi did not deal with
tle.") (quoting Waste Management Holdings, Inc.,
certification orders under rule 23, it relied on the
v. Mowbray, 208 F.3d 288, 293 (1st Cir. 2000));
logic of Coopers and pre-dated the enactment of
see also Blair v. Equifax Check Servs., Inc., 181
rule 23(f).
F.3d 832, 834 (7th Cir. 1999).
3

gress.6 Accordingly, because the question of
class certification has not yet been conclusively
determined, the Cohen collateral order excep-
tion to § 1291 is inapplicable.
The appeal is DISMISSED for want of
jurisdiction.7
6 A critical difference between a § 216(b) class
action and a rule 23 class action is that the former
requires each class member to opt in as a party
plaintiff, but the latter includes all absent class
members who do not affirmatively opt out. Conse-
quently, Congress could rationally conclude that
the default rule allows rule 23 certification orders,
on average, to result in larger, more financially
onerous classes, thereby giving stronger policy
justification for a special procedural rule allowing
interlocutory appeals of those orders and trumping
the final judgment rule of § 1291.
7 The plaintiffs have requested sanctions under
Federal Rule of Civil Procedure 38 and our local
rules. Because this appeal is not frivolous, we
deny the request.
4