Dionta Curtis; Niaarday Tagoe; Donald Washington; Darrell Johnson; Brock Ashbaugh; Antwine Stanley, Plaintiffs-Appellees, v. PINKERTON GOVERNMENT SERVICES, INC., Defendant-Appellant.
No. 12-1252
United States Court of Appeals, Fourth Circuit
March 14, 2013
Argued: Dec. 4, 2012.
III.
For the foregoing reasons, Akwei‘s conviction and sentence are
AFFIRMED.
LaMarcus EALY; Donald Jackson; Gary Simmons; Nabie Bangura; Keodrian Biddle; Andre Blake; James Bonds; Jermaine Fraser; Charley Harris; Elise Hurtzig; Johnny Jones; Sherri Sivels; Ronald Washington; Chamia Evon Whitfield;
ARGUED: Robert G. Ames, Venable, LLP, Washington, D.C., for Appellant. Michael Timothy Anderson, Murphy Anderson, PLLC, Washington, D.C., for Appellees. ON BRIEF: John F. Cooney, Venable, LLP, Washington, D.C.; Thomas H. Strong, Mark D. Maneche, Venable, LLP, Baltimore, Maryland, for Appellant. Mark Hanna, Renee M. Gerni, Murphy Anderson, PLLC, Washington, D.C.; Arthur P. Rogers, Keira M. McNett, D.C. Employment Justice Center, Washington, D.C., for Appellees.
Before MOTZ, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
We conclude that Supreme Court precedent demands a more rigorous analysis as to whether class certification requirements listed in Rule 23 of the Federal Rules of Civil Procedure have been satisfied in this case. We also conclude that Pinkerton has
I.
A.
Pinkerton is a private contractor that provides a variety of security services. From December 2007 through September 2011, Pinkerton performed civilian security services as a subcontractor to a contract between Southeast Protective Service and Andrews Air Force Base. Andrews Air Force Base is a federal military enclave acquired by the United States from Maryland in 1942. Appellees LaMarcus Ealy, Donald Jackson, Gary Simmons, et al. (“Appellees“) are current and former security officers employed by Pinkerton at Andrews Air Force Base.
Two of Pinkerton‘s practices at Andrews Air Force Base are at the heart of this case: Pinkerton‘s policies regarding compensation for time spent (1) disarming; and (2) during meal breaks.
1.
Disarming
The shifts worked by Pinkerton‘s employees at Andrews Air Force Base consisted of alternating 30 minute periods: 30 minutes at their guard post, followed by 30 minutes on standby at an on-site guard shack. At the beginning of each shift, Pinkerton required its security personnel employed at Andrews Air Force Base to report to the base armory to obtain weapons and equipment to be used during their respective shifts. At the conclusion of each shift, Pinkerton required its employees to report back to the base armory to deposit the weapons and equipment, that is, to disarm. This process of disarming took Pinkerton employees approximately 15 minutes to complete. According to Appellees, prior to November 2009, Pinkerton employees were not compensated for time spent disarming.2
2.
Meal Breaks
Pursuant to its subcontract, Pinkerton was required to provide all of its security personnel at Andrews Air Force Base with off-duty meal breaks. Under Pinkerton‘s contract, Pinkerton was to “provide shift relief for employees during meals and scheduled breaks as required by state and local law,” S.A. 54, and Pinkerton‘s security personnel were to “be relieved to take meals off/away from posts.” Id.3 Prior to November 2009, Pinkerton‘s employees received 30-minute uncompensated meal breaks. After November 2009, the meal break period increased and Pinkerton‘s employees received 45-minute uncompensated
B.
On March 29, 2010, Appellees, on behalf of themselves and similarly situated Pinkerton employees, filed suit against Pinkerton in the United States District Court for the District of Maryland. Appellees alleged Pinkerton‘s compensation practices related to disarming and meal breaks violated federal and state law under the Fair Labor Standards Act (“FLSA“),
On March 30, 2010, Appellees moved to conditionally certify their federal claims as an FLSA opt-in collective action under
On October 8, 2010, Pinkerton moved for partial summary judgment on Appellees’ state law claims, arguing they were barred under the federal enclave doctrine. The district court denied Pinkerton‘s motion, and also denied Pinkerton‘s subsequent request to certify the issue for interlocutory appeal. Pinkerton did not petition this court directly for interlocutory review of the federal enclave doctrine issue.
On May 30, 2011, Appellees moved for class certification of their state law claims pursuant to
The district court began its analysis by recognizing, generally, that there were facts common to the entire class, that is, that all class members were uncompensated for their meal breaks and that any obligations that allegedly accompanied their meal breaks were applicable to all class members.5 The district court then determined that the class was sufficiently numerous as it contained approximately 150 members.6 Next, similar to its commonality analysis, the district court determined the Appellees adequately protected the interests of the class as a whole because the meal break claim was shared among the Appellees and all class members.7
The district court then recognized that even if some dissimilarities existed among the class—because some individuals had,
The district court memorialized its oral opinion in a brief, conclusory three-page written order dated January 11, 2012. The district court‘s order, which did not provide any further analysis, defined the class as “[a]ll current and/or former employees of Pinkerton Government Services who worked at Andrews Air Force Base and held non-exempt positions as civilian security guards since December 2007.” J.A. 1010.
On January 27, 2012, pursuant to
II.
We review a district court‘s Rule 23 class certification decision for an abuse of discretion. Brown v. Nucor Corp., 576 F.3d 149, 152 (4th Cir.2009).
We exercise pendent appellate jurisdiction at our own discretion, in “limited and narrow” circumstances. Rux v. Republic of Sudan, 461 F.3d 461, 475 (4th Cir.2006).
III.
A.
Class Certification
We begin by addressing the central subject of this appeal: the district court‘s grant of Appellees’ motion for class certification.
Under
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
- the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
the representative parties will fairly and adequately protect the interests of the class.
In addition, the class representative must satisfy one of the class action requirements found in
the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
On appeal, Pinkerton argues Appellees failed to satisfy the threshold
1.
Commonality
Under the
2.
Typicality
Typicality under
In order to conduct a typicality analysis a court must compare “the plaintiffs’ claims or defenses with those of the absent class members.” Id. at 467. That analysis will necessarily entail “[1] a review of the elements of plaintiffs’ prima facie case[;] [2] the facts on which the plaintiff[s] would necessarily rely to prove [those elements,]” id.; and (3) a determination of to what extent “those facts would also prove the claims of the absent class members.” Id.; accord Soutter v. Equifax Info. Servs., LLC, No. 11-1564, 498 Fed. Appx. 260, 2012 WL 5992207 (4th Cir. Dec. 3, 2012).
3.
Predominance
Under
We have noted, “[i]n a class action brought under
4.
Rigorous Analysis
In Wal-Mart, the Supreme Court emphasized that the
In this case, after reviewing the district court‘s oral ruling and brief written order, we find the district court abused its discretion by failing to provide a “rigorous analysis” sufficient to enable us to conduct meaningful appellate review.
We first turn to commonality. The district court did note that there appeared to be a common question of fact among all the class members: whether or not they were compensated for their meal breaks. It is undisputed that they were not. Given the factual circumstances of their meal breaks, a common question of law could be whether or not the class members should have been compensated for that time under Maryland law. But whether those
The same can be said of the typicality requirement. The district court‘s oral ruling and brief written order did not clearly address the typicality requirement in any meaningful way that this court can identify. The district court did not compare the claims of the Appellees with the class as a whole to determine whether Appellees’ claims are typical of the class. See e.g., Deiter, 436 F.3d at 466-67.
Finally, the district court did not conduct the required separate inquiry as to whether common questions of law or fact predominate over those affecting only individual class members. Rather, the district court‘s limited oral ruling appeared to blend the commonality and predominance inquiries—which Wal-Mart counsels against. The district court did appear to acknowledge that there may be some dissimilarities between class members and that these dissimilarities did not “change the outcome about the propriety of a class action....” J.A. 990. But whether this was in part, or in its entirety, the district court‘s predominance analysis is unclear, and in either case, insufficiently rigorous. The district court also did not address whether, in fact, the class action is the superior method for resolving this controversy compared to other alternatives. See, e.g., Stillmock, 385 Fed.Appx. at 273-75.
Appellees suggest that to compensate for any deficiency in the pleading relied on by the district court, we could probe behind the pleadings and look to the declara-
You have the underlying declarations. That is what you should read.... And when you read any one of those 31 declarations, it‘s not at all clear that the description that, [“]I never worked beyond the, I never worked beyond my scheduled shift time[“] refers to anything but the time, but the present time period. That is the time period after November of 2009.
In fact, many of the declarants specifically refer to the post-2009 procedure of signing in and signing out at the begin-ning and end of their shift. You know, at—when it‘s clear that before November of 2009, you were supposed to sign out at five o‘clock and not at 5:15, for instance, and that‘s the 15 minutes we‘re talking about.
So, you know, when the declarants are asked to say whether sometimes, rarely, always, never, some of the time they ever worked more than their scheduled work time, the context of the declaration is clear that they‘re acting within the framework of the, of the wage recording policies that have been in place since November of ‘09.
J.A. 975. Thus, the class member declarations, by the Appellees own admission, speak only to the commonality of time worked after November 2009, a time period, which with respect to the disarming claim, is not even at issue in this case.
General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), which involved allegations of employment discrimination, is also instructive here. As the Supreme Court reaffirmed in Wal-Mart, in Falcon, commonality and typicality were lacking where,
[c]onceptually, there is a wide gap between (a) an individual‘s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual‘s claim and the class claim will share common questions of law or fact and that the individual‘s claim will be typical of the class claims.
131 S.Ct. at 2553 (quoting Falcon, 457 U.S. at 157-58, 102 S.Ct. 2364) (internal quotation marks omitted). Here, there is a more narrow gap between (a) Appellees’ claim that they have been denied pay based on Pinkerton‘s employee-wide, under-inclusive definition of time-worked, and (b) the existence of a class of fellow employees who suffered that same injury. But whether that gap has, in fact, been successfully bridged, is for the district court to determine in the first instance.
In sum, a rigorous analysis into the
Second, a district court must determine whether even a single question of fact or law is common to the class. Such questions will depend on a “common contention,” the resolution of which will resolve “an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S.Ct. at 2551; see also Ross, 667 F.3d at 908-10 (7th Cir.2012).
Third, a district court must determine whether the claims (or defenses) of the representative parties are typical of those
Fourth, a district court must determine whether “the representative parties will fairly and adequately protect the interests of the class.”
Finally, if seeking class certification pursuant to
We make no determination at this point as to which path the district court should take. Perhaps a class should be certified, perhaps one or more subclasses should be certified, or perhaps class certification should be denied entirely. We only conclude at this point, that what is required, is a more rigorous analysis into whether, in this case, the “numerosity, commonality, typicality, representativeness, predominance, and superiority requirements of both
B.
Pendent Jurisdiction
We now turn to Pinkerton‘s argument in favor of our exercise of pendent appellate jurisdiction. Pinkerton asks this court to exercise pendent appellate jurisdiction over the district court‘s order denying partial summary judgment on Appellees’ state law claims based on the federal enclave doctrine.11
Our appellate jurisdiction is limited to final orders from the district courts with certain limited exceptions. Rux v. Republic of Sudan, 461 F.3d 461, 474 (4th Cir.2006) (citing
We have recognized that the Supreme Court‘s decision in Swint v. Chambers County Commission, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), indicates pendent appellate jurisdiction is available in only two scenarios: “(1) when an issue is ‘inextricably intertwined’ with a question that is the proper subject of an immediate appeal; or (2) when review of a jurisdictionally insufficient issue is ‘necessary to ensure meaningful review’ of an immediately appealable issue.” Rux, 461 F.3d at 475 (quoting Swint, 514 U.S. at 50-51, 115 S.Ct. 1203). Our commitment to this dichotomy has held firm. See, e.g., Evans v. Chalmers, 703 F.3d 636, 658 (4th Cir.2012) (applying the Swint standard in the context of an immediately appealable issue of qualified immunity in a § 1983 action); Bellotte v. Edwards, 629 F.3d 415, 427 (4th Cir.2011) (same).
But the two potential pendent jurisdiction scenarios set forth in Swint are not always so easily distinguished. See Myers v. Hertz Corp., 624 F.3d 537, 553 n. 6 (2d Cir.2010) (“In some cases, ... the analysis of the two parts [of the Swint standard] will be substantially the same.“) (citing Rein v. Socialist People‘s Libyan Arab Jamahiriya, 162 F.3d 748, 758 (2d Cir.1998)).
Under the first pendent jurisdiction scenario, the Second Circuit in Myers explained that in order for two issues in two separate rulings to be inextricably intertwined, “the ‘same specific question’ will ‘underl[ie] both the appealable order and the non-appealable order,’ such that ... resolution of the question will necessarily resolve the appeals from both orders at once.” 624 F.3d at 553 (quoting Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 576 (2d Cir.2005)). Likewise, we have held that a pendent issue is inextricably intertwined with an immediately appealable interlocutory issue, and we may thus grasp jurisdiction over the pendent issue, when resolution of the appealable issue “necessarily decides” the pendent issue. Rux, 461 F.3d at 476. For example, in Altman v. City of High Point, 330 F.3d 194 (4th Cir.2003), we found that resolution of an interlocutory issue (whether officers were entitled to qualified immunity in a § 1983 action) “fully resolve[d]” the pendent issue (whether the municipality could be held liable) because the qualified immunity inquiry revealed the officers committed no federal constitutional violation which would have been required to hold the municipality liable. 330 F.3d at 207 n. 10 (considering the issues “inextricably intertwined“); cf. Evans, 703 F.3d at 654 n. 11, 658-59 (exercising pendent appellate jurisdiction over municipality‘s § 1983 liability when issues of qualified immunity fully resolved the issue, but finding neither Swint rationale supported exercising pendent appellate jurisdiction over state constitutional claims where “our review of ... immunity ... did not require any evaluation of the state constitutional claims“).
Under the second pendent jurisdiction scenario, review of a pendent issue will be “necessary to ensure meaningful review” of an immediately appealable issue if resolution of the pendent issue is necessary, or essential, in resolving the immediately appealable issue. Swint, 514 U.S. at 51, 115 S.Ct. 1203; see also United States v. North Carolina, 180 F.3d 574, 581 n. 4 (4th Cir.1999) (citing Taylor v. Waters, 81 F.3d 429, 437 (4th Cir.1996)).
In other words, under Swint “[i]t is appropriate to exercise pendent appellate
Pinkerton contends the issues implicated by the federal enclave doctrine in this case satisfy both Swint prongs, that is, that they are so inextricably intertwined with, and necessary to ensure meaningful review of, the class certification of the Maryland state law claims, that they warrant our review at this stage. Pinkerton argues that in order to effectively review the district court‘s grant of class certification, we must first review whether state law is even applicable in this case, or whether it is prohibited by the federal enclave doctrine. Pinkerton‘s argument is unavailing.
Pinkerton does not and cannot illustrate how the two issues are so inextricably intertwined that resolution of the appealable class certification issue necessarily resolves the non-appealable federal enclave doctrine issue. This is because, in fact, the two issues are distinct legal concepts. Whether Appellees have satisfied the
The concern raised by Pinkerton speaks to judicial economy, which should not serve as the basis for exercising pendent appellate jurisdiction. See Rux, 461 F.3d at 475 (“We are constrained by the language of the Supreme Court as well as our own precedent from recognizing efficiency considerations as a basis for the exercise of pendent appellate jurisdiction.“).
Other circuits have likewise refused to exercise pendent appellate jurisdiction over a non-appealable issue in the context of a class certification appeal. See, e.g., Myers, 624 F.3d 537 (affirming district court‘s class certification determination but refusing to exercise pendent appellate jurisdiction over district court‘s earlier denial of plaintiff‘s motion to send opt-in notice to potential class members); Poulos v. Caesars World, Inc., 379 F.3d 654 (9th Cir.2004) (affirming district court‘s class certification determination but refusing to exercise pendent appellate jurisdiction over district court‘s denial of defendant‘s motion to dismiss the underlying action on primary jurisdiction, Burford abstention, and personal jurisdiction grounds).
Accordingly, we decline to exercise pendent appellate jurisdiction over the district court‘s denial of Pinkerton‘s motion for partial summary judgment on federal enclave doctrine grounds.
IV.
We conclude that, consistent with Wal-Mart Stores, Inc. v. Dukes, — U.S. —, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), a
We also decline to exercise pendent appellate jurisdiction over Pinkerton‘s motion for partial summary judgment to consider whether Appellees’ state law claims are barred under the federal enclave doctrine. We exercise pendent appellate jurisdiction sparingly, at our own discretion, as “[it] is an exception of limited and narrow application driven by considerations of need, rather than of efficiency.” Rux v. Republic of Sudan, 461 F.3d 461, 475 (4th Cir.2006). Pinkerton has not shown that the federal enclave doctrine is either inextricably intertwined with, or necessary to ensure meaningful appellate review of, the
We therefore vacate and remand the district court‘s class certification order for the required rigorous analysis and deny Pinkerton‘s request to review the district court‘s denial of its motion for partial summary judgment.
VACATED AND REMANDED.
Notes
- prosecuting separate actions by or against individual class members would create a risk of:
- inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
- adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; [or]
- the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole;....