LaMarcus Ealy v. Pinkerton Government Service
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:10-cv-00775-PJM. Copies to all parties and the district court/agency. [999063930]. [12-1252]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1252
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; DIONTA CURTIS;
NIAARDAY TAGOE; DONALD WASHINGTON; DARRELL JOHNSON; BROCK
ASHBAUGH; ANTWINE STANLEY,
Plaintiffs - Appellees,
v.
PINKERTON GOVERNMENT SERVICES, INC.,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:10-cv-00775-PJM)
Argued:
December 4, 2012
Decided:
March 14, 2013
Before MOTZ, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
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.;
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Arthur P. Rogers, Keira M. McNett, D.C.
CENTER, Washington, D.C., for Appellees.
EMPLOYMENT
JUSTICE
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This
dispute
arises
in
the
context
of
an
action
brought by private service employees for allegedly unpaid wages
while
working
(“Pinkerton”),
Base. 1
for
a
Pinkerton
government
Government
contractor
at
Services,
Andrews
Air
Inc.
Force
The district court granted the employees’ motion for
class certification and Pinkerton filed this appeal.
seeks
review
of
the
district
court’s
grant
Pinkerton
of
class
certification as well as review of an earlier denial of its
motion
for
summary
judgment
based
on
the
federal
enclave
doctrine.
We
more
conclude
rigorous
that
analysis
as
Supreme
to
Court
whether
precedent
class
demands
a
certification
requirements listed in Rule 23 of the Federal Rules of Civil
Procedure have been satisfied in this case.
that
Pinkerton
has
failed
to
demonstrate
We also conclude
that
the
federal
enclave doctrine is inextricably intertwined with, or necessary
to
ensure
requirements
remand
for
meaningful
found
in
review
of,
Rule
23.
reconsideration
the
1
the
class
Accordingly,
employees’
certification
we
motion
vacate
for
and
class
Andrews Air Force Base was recently consolidated with an
adjacent military facility and renamed Joint Base Andrews. For
the sake of simplicity, we will refer to the facility as Andrews
Air Force Base.
3
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certification
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and
decline
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to
exercise
pendent
appellate
jurisdiction over Pinkerton’s motion for summary judgment based
on the federal enclave doctrine.
I.
A.
Pinkerton
variety
of
is
security
a
private
services.
contractor
From
that
December
provides
2007
a
through
September 2011, Pinkerton performed civilian security services
as a subcontractor to a contract between Southeast Protective
Service and Andrews Air Force Base.
federal
military
Maryland in 1942.
enclave
acquired
Andrews Air Force Base is a
by
the
United
States
from
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
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at an on-site guard shack.
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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
equipment, that is, to disarm.
Pinkerton
employees
According
to
to
the
weapons
and
This process of disarming took
approximately
Appellees,
deposit
prior
15
to
minutes
November
to
complete.
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
Pinkerton
was
meal
to
breaks.
"provide
Under
shift
relief
Pinkerton's
for
contract,
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
2
In November 2009, Pinkerton informed Appellees that their
start time on their timesheets should be the time they begin the
arming procedure, and their end time should be the time they
complete the disarming procedure.
Appellees originally alleged
in Count I of their Complaint that they were not properly
compensated for time spent arming and disarming.
At a hearing
before the district court, however, the Appellees abandoned
their claim with respect to arming.
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to take meals off/away from posts."
2009,
meal
Pinkerton's
breaks.
increased
and
employees
After
received
November
Pinkerton's
uncompensated meal breaks.
2009,
Id. 3
Prior to November
30-minute
uncompensated
the
break
employees
meal
received
period
45-minute
Pinkerton's security personnel were
required to spend the majority of the duration of their meal
breaks
at
the
guard
shack,
armed,
and
on-call
in
case
of
emergencies.
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"), 29
U.S.C. §§ 201-219, and the Maryland Wage and Hour Law and the
Maryland Wage Payment and Collection Law, Md. Code Ann, Lab. &
Empl., Title 3. 4
3
Citations to the “S.A.” refer to the Supplemental Appendix
filed by the parties in this appeal.
Citations to the “J.A.”
refer to the Joint Appendix filed by the parties in this appeal.
4
Appellee Jackson also brought a state law claim for
unlawful retaliation, Md. Code Ann., Lab. & Empl., § 3-428, but
such claim is not at issue in this appeal.
6
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On March 30, 2010, Appellees moved to conditionally
certify their federal claims as an FLSA opt-in collective action
under 29 U.S.C. § 216(b).
On August 11, 2010, the district
court certified Appellees' FLSA claims as a collective action.
On
October
8,
2010,
Pinkerton
moved
for
partial
summary judgment on Appellees' state law claims, arguing they
were barred under the federal enclave doctrine.
court
denied
subsequent
appeal.
Pinkerton's
request
Pinkerton
motion,
to
certify
did
not
and
the
petition
also
The district
denied
issue
for
this
court
Pinkerton's
interlocutory
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 Federal Rule
of Civil Procedure 23.
On December 21, 2011, after hearing
argument from the parties, the district court ruled from the
bench and granted Appellees' request for class certification.
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
5
The
“The specific claim here is that the common fact with
regard to this class is to start with . . . regard to meals.
There is no question that Pinkerton does not compensate these
(Continued)
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district court then determined that the class was sufficiently
numerous
as
it
similar
to
contained
its
approximately
commonality
members. 6
150
analysis,
the
district
Next,
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, in fact, been compensated for their disarming
time –– that “[did not] change the outcome about the propriety
of
a
class
action
going
forward[,]”
J.A.
990,
because
those
class members who did not suffer the disarming injury could be
excluded
component.
from
The
any
potential
district
recovery
court
concluded
for
by
the
disarming
reiterating
its
employees for 45 minutes of time that is allotted for their
meals.” J.A. 987.
6
“[G]iven the number of potential plaintiffs in the class,
150 more or less, 152, that would be a numerous class whose
joinder would be impractical.” J.A. 988.
7
“[T]he only other issue as far as the case is concerned
under Rule 23 is whether the representative parties will fairly
and adequately protect the interest of the class proposed.
These three proposed members all suggest that they were . . .
denied compensation during their lunch time, even though they
were required to bear weapons, have a radio, be in the curtilage
and so on and so forth. And that in the Court’s view, at least
at this stage, is strong evidence, if you will that there was a
common fact that could be finally established on the merits of
the case.” J.A. 988–89.
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determination that the Appellees could adequately protect the
interests of the class and by determining Appellees’ counsel
could adequately represent the class as a whole. 8
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 Federal Rule of Civil
Procedure
23(f),
Pinkerton
interlocutory
review
certification
of
of
the
Appellees’
petitioned
district
state
law
this
court's
court
grant
claims. 9
On
of
for
class
appeal,
Pinkerton also requested that this court exercise its pendent
appellate jurisdiction to review the district court's earlier
decision to deny Pinkerton's motion for partial summary judgment
8
“The question about whether the representative parties
will fairly and accurately protect the interest of the class,
the plaintiffs have all been security guards and there’s no
question as to their at least truthfulness, as to their own
situation when they were with Pinkerton at Andrews Air Force
Base.” J.A. 991.
9
Pinkerton did not seek review of the district court’s
decision to certify Appellees’ federal FLSA claims as an opt-in
collective action.
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on
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Appellees'
doctrine.
state
law
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claims
based
on
the
federal
enclave
On February 29, 2012, we granted Pinkerton's petition
for interlocutory review.
II.
We
review
a
district
court’s
Rule
23
certification decision for an abuse of discretion.
class
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.
Rule
governs
contains
the
23
of
procedures
two
the
Federal
related
provisions
that
Rules
to
of
class
actions.
the
party
Civil
Procedure
Rule
seeking
23
class
certification must satisfy in order for a class action to be
maintained: Rule 23(a); and Rule 23(b).
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Under
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Rule
23(a),
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an
individual
or
group
of
individuals may operate as a representative of a class only if:
(1) the class is so numerous
members is impracticable;
that
joinder
of
all
(2) there are questions of law or fact common to the
class;
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class; and
(4)
the
representative
parties
will
fairly
adequately protect the interests of the class.
and
Fed. R. Civ. P. 23(a).
In addition, the class representative must satisfy one
of the class action requirements found in Rule 23(b).
In this
case, the district court concluded Appellees had satisfied Rule
23(b)(3), which, in relevant part, permits a class action if
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.
Fed. R. Civ. P. 23(b)(3). 10
10
A class action may also be maintained under Rule 23(b) if
either:
(1) prosecuting separate actions by or against individual
class members would create a risk of:
(A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible
standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members
that, as a practical matter, would be dispositive of the
(Continued)
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On
satisfy
the
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appeal,
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Pinkerton
threshold
Rule
argues
23(a)(2)
and
Appellees
to
commonality
(3)
failed
and
typicality requirements, respectively, for their disarming and
meal break claims and failed to show, pursuant to Rule 23(b)(3),
common
questions
of
law
or
fact
predominate
over
questions
affecting individual members.
1.
Commonality
Under
the
Rule
23(a)
commonality
criterion,
class
representatives must show that “there are questions of law or
fact common to the class.”
Fed. R. Civ. P. 23(a)(2).
Although
“for purposes of Rule 23(a)(2) even a single common question
will do,” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556
(2011) (internal quotations and alterations omitted), not just
any common question will do.
For example, asking whether all
potential class members work for the same company, are eligible
for the same remedies, or even suffered a violation of the same
interests of the other members not parties to the individual
adjudications or would substantially impair or impede their
ability to protect their interests; [or]
(2) 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; . . . .
Fed. R. Civ. P. 23(b).
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provision of law is insufficient.
Rather,
“[c]ommonality
requires
Wal-Mart, 131 S. Ct. at 2551.
the
plaintiff
to
demonstrate
that the class members have suffered the same injury[,]” id.
(internal
injury
quotation
that
also
contention.”
Id.
marks
and
springs
citation
forth
omitted)
from
the
–-
a
same
shared
“common
“That common contention, moreover, must be of
such a nature that it is capable of classwide resolution –which
means
that
determination
of
its
truth
or
falsity
will
resolve an issue that is central to the validity of each one of
the claims in one stroke.”
Id.
The Seventh Circuit’s decision
in Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012), is
illustrative.
In Ross, the Seventh Circuit concluded, “the glue
holding together the Hourly and ABM classes is based on the
common question of whether an unlawful overtime policy prevented
employees
from
compensation.”
collecting
lawfully
earned
overtime
667 F.3d at 910.
2.
Typicality
Typicality
into
the
under
“representative
class . . . .”
Rule
23(a)(3)
parties’
requires
ability
to
an
inquiry
represent
a
Deiter v. Microsoft Corp., 436 F.3d 461, 466
(4th Cir. 2006).
Although a representative’s claims and the
claims of other members of the class need not be “perfectly
identical
or
perfectly
aligned,”
13
id.
at
467,
the
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pursuit
representative’s
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his
of
own
interests
“must
simultaneously tend to advance the interests of the absent class
members.”
Id. at 466.
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, 2012
WL 5992207 (4th Cir. Dec. 3, 2012).
3.
Predominance
Under
predominate
over
Rule
23(b)(3),
individual
whether
questions
is
common
a
separate
distinct from the requirements found in Rule 23(a).
Mart, 131 S. Ct. at 2556.
questions
inquiry,
See Wal-
This balancing test of common and
individual issues is qualitative, not quantitative.
Gunnells v.
Healthplan
Cir.
Servs.,
Inc.,
348
F.3d
417,
429
(4th
2003)
(citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir.
1996)).
Indeed,
common
issues
of
liability
may
still
predominate even when some individualized inquiry is required.
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See id.
App’x
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For example, in Stillmock v. Weis Markets, Inc., 385 F.
267
(4th
Cir.
2010),
we
considered
whether
individual
statutory damages under the Fair and Accurate Credit Transaction
Act
rendered
the
plaintiffs’
action
preclude class-wide treatment.
the
negative,
overarching
we
by
far
individualized
as
to
In answering that question in
recognized
issue
so
that
is
where
the
“the
liability
qualitatively
issue
of
the
defendant’s willfulness, and the purported class members were
exposed
to
the
same
risk
of
harm
every
time
the
defendant
violated the statute in the identical manner, the individual
statutory
damages
issues
are
insufficient
certification under Rule 23(b)(3).”
to
defeat
class
385 F. App’x at 273.
We have noted, “[i]n a class action brought under Rule
23(b)(3),
the
‘commonality’
‘subsumed
under,
23(b)(3)
requirement
or
requirement
superseded
that
by,
the
questions
predominate over’ other questions.”
of
Rule
more
common
23(a)(2)
stringent
to
the
is
Rule
class
Lienhart v. Dryvit Sys.,
Inc., 255 F.3d 138, 146 n.4 (4th Cir. 2001) (quoting Amchem
Prods.,
Inc.
Nonetheless,
v.
the
Windsor,
Rule
23(a)
521
U.S.
commonality
591,
609
requirement,
(1997)).
and
the
Rule 23(b)(3) predominance requirement remain separate inquiries
and the inquiries should not be “blended.”
at 2556 (alterations omitted).
Wal-Mart, 131 S. Ct.
However, a court may use some of
the same tools to construct the two separate inquiries.
15
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may
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analyze
the
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dissimilarities
between
class
members
to
determine whether “even a single common question,” id. (internal
quotations
purposes
and
and
alterations
then
to
omitted),
determine
exists
whether
predominate for Rule 23(b)(3) purposes.
for
Rule
common
23(a)
questions
See id.
4.
Rigorous Analysis
In
Wal-Mart,
the
Supreme
Court
emphasized
that
the
Rule 23 prerequisites are not to be taken lightly and “do[] not
set
forth
Rather,
a
mere
“[a]
pleading
party
standard.”
seeking
131
class
S.
Ct.
at
certification
2551.
must
affirmatively demonstrate his compliance with the Rule –- that
is,
he
must
be
prepared
to
prove
that
there
are
in
fact
sufficiently numerous parties, common questions of law or fact,
etc.”
Id.
As a result, the trial court may find it necessary
to “probe behind the pleadings” and ultimately, will need to
conduct a “rigorous analysis” to determine whether the Rule 23
prerequisites have been satisfied.
quotation
marks
omitted);
see
also
Id. (internal citations and
Amgen
Inc.
v.
Conn.
Ret.
Plans and Trust Funds, 568 U.S. ___, No. 11-1085, slip op. at 9
(2013)
(cautioning
that
in
a
rigorous
class
certification
analysis, “[m]erits questions may be considered to the extent ––
but only to the extent –– that they are relevant to determining
whether the Rule 23 prerequisites for class certification are
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satisfied”).
be
brought
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In the end, “[a]ctions such as this one, . . . may
only
if
representativeness,
the
numerosity,
predominance,
commonality,
superiority
and
typicality,
requirements
of both Rule 23(a) and (b)(3) are met.”
Lienhart, 255 F.3d at
146.
In
this
case,
after
reviewing
the
district
court’s
oral ruling and brief written order, we find the district court
abused
its
analysis”
discretion
sufficient
by
to
failing
enable
to
us
provide
to
a
conduct
“rigorous
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.
the
factual
It is undisputed that they were not.
circumstances
of
their
meal
breaks,
a
Given
common
question of law could be whether or not the class members should
have been compensated for that time under Maryland law.
whether
those
common
questions
are
dependent
upon
a
But
“common
contention,” Wal-Mart, 131 S. Ct. at 2551, the resolution of
which will resolve “each one of the claims in one stroke[,]”
id., is a determination for the district court to make in the
first instance.
832
(5th
Cir.
See M.D. ex rel. Stukenberg v. Perry, 675 F.3d
2012)
(remanding
class
certification
allow the district court to conduct rigorous analysis).
17
issue
to
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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 . . . .”
990.
J.A.
But whether this was in part, or in its entirety, the
district court’s predominance analysis is unclear, and in either
case, insufficiently rigorous.
address
whether,
method
for
alternatives.
in
fact,
resolving
The district court also did not
the
this
class
action
controversy
is
the
compared
superior
to
other
See, e.g., Stillmock, 385 F. App’x at 273–75.
Appellees
suggest
that
to
compensate
for
any
deficiency in the pleading relied on by the district court, we
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could probe behind the pleadings and look to the declarations.
However,
we
Appellees’
note
motion
that
for
during
class
the
district
certification,
their own argument in this regard.
court
hearing
Appellees
on
undercut
Appellees stated:
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 beginning 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.
own
Thus, the class member declarations, by the Appellees
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 (1982), which involved allegations of employment
discrimination, is also instructive here.
19
As the Supreme Court
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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.
(internal
narrow
at
2553
quotation
gap
(quoting
marks
between
(a)
Falcon,
omitted).
Appellees’
457
Here,
claim
U.S.
at
157-58)
there
is
a
more
have
been
that
they
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 Rule 23(a) and
Rule 23(b)(3) requirements will clearly contain the following
elements.
First,
class
so
is
impracticable.”
a
district
numerous
court
that
must
joinder
decide
of
all
whether
members
“the
is
Fed. R. Civ. P. 23(a)(1).
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
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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 of the class as a whole by comparing the claims of the
representatives with the claims of the absent class members and
determining whether they tend to advance the same interests.
See Deiter, 436 F.3d at 466–67.
Fourth, a district court must determine whether “the
representative parties will fairly and adequately protect the
interests of the class.”
Finally,
if
Fed. R. Civ. P. 23(a)(4).
seeking
class
certification
pursuant
to
Rule 23(b)(3), a district court must determine whether common
questions of law or fact predominate over individual questions
such that a class action is the superior method for resolving
the controversy.
This separate inquiry will require a district
court to balance common questions among class members with any
dissimilarities between class members.
at 427–30.
See Gunnells, 348 F.3d
If satisfied that common questions predominate, a
district court should then also consider whether any alternative
methods
exist
for
resolving
the
controversy
class action method is in fact superior.
385 F. App’x at 273–75.
21
and
whether
the
See, e.g., Stillmock,
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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 Rule 23(a) and (b)(3) are met.”
Lienhart, 255 F.3d at 146.
B.
Pendent Jurisdiction
We now turn to Pinkerton’s argument in favor of our
exercise of pendent appellate jurisdiction.
court
to
district
exercise
court’s
Appellees’
state
pendent
order
law
appellate
denying
claims
jurisdiction
partial
based
Pinkerton asks this
on
summary
the
over
judgment
federal
the
on
enclave
doctrine. 11
11
The federal enclave doctrine derives from Article I,
Section 8, Clause 17 of the United States Constitution.
The
Constitution provides that Congress shall have the power “[t]o
exercise exclusive Legislation . . . over all Places purchased
by the Consent of the Legislature of the State in which the Same
shall be, for the Erection of Forts, Magazines, Arsenals, dockYards, and other needful Buildings.”
U.S. Const. art. I, § 8,
cl. 17.
While the general principle of the federal enclave
doctrine is that only Congress shall have exclusive legislative
authority over federal enclaves, the Supreme Court and Circuit
Courts have recognized that certain circumstances may permit
(Continued)
22
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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
28 U.S.C. § 1291 (2000)).
Pendent appellate jurisdiction is “a
judicially-created, discretionary exception” to the requirement
that courts of appeals can only hear appeals from final orders.
Id. at 475.
As such, “[it] is an exception of limited and
narrow application driven by considerations of need, rather than
of efficiency.”
Id. (citing Montano v. City of Chicago, 375
F.3d 593, 599 (7th Cir. 2004)).
Even if we find it permissible
to exercise pendent appellate jurisdiction, its exercise remains
discretionary.
Cir.
2002)
See Clem v. Corbeau, 284 F.3d 543, 549 n.2 (4th
(“Assuming
that
we
have
pendent
appellate
jurisdiction of the order denying summary judgment on the state
law claims, . . . the decision to exercise such jurisdiction is
purely discretionary.”) (citing DiMeglio v. Haines, 45 F.3d 790,
808 (4th Cir. 1995)).
We have recognized that the Supreme Court’s decision
in
Swint
v.
Chambers
County
Commission,
514
U.S.
35
(1995),
indicates pendent appellate jurisdiction is available in only
state law to apply. See, e.g., Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 180 (1988); James Stewart & Co. v. Sadrakula, 309
U.S. 94, 99–100 (1940); Allison v. Boeing Laser Technical
Servs., 689 F.3d 1234, 1236–38 (10th Cir. 2012).
23
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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
immediately appealable issue.”
Swint, 514 U.S. at 50–51.).
has held firm.
meaningful
review’
of
an
Rux, 461 F.3d at 475 (quoting
Our commitment to this dichotomy
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
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orders at once.”
Pg: 25 of 29
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.
n.10
330 F.3d at 207
(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
finding
neither
appellate
“our
qualified
immunity
Swint
rationale
jurisdiction
review
of
.
.
fully
over
.
supported
state
immunity
resolved
the
exercising
constitutional
.
.
.
issue,
did
pendent
claims
not
but
where
require
any
evaluation of the state constitutional claims”).
Under the second pendent jurisdiction scenario, review
of
a
pendent
issue
will
be
“necessary
25
to
ensure
meaningful
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review” of an immediately appealable issue if resolution of the
pendent
issue
is
necessary,
or
immediately appealable issue.
essential,
in
resolving
the
Swint, 514 U.S. at 51; 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
resolution
of
the
appellate
jurisdiction
appealable
issue
only
necessarily
where
[1]
resolves
the
nonappealable issue, or [2] where review of the nonappealable
issue is necessary to ensure meaningful review of the appealable
one.”
Berrey v. Asarco, Inc., 439 F.3d 636, 647 (10th Cir.
2006) (citing Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th
Cir. 2006)).
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
certification
ensure
of
the
meaningful
Maryland
state
warrant our review at this stage.
review
of,
law
claims,
the
that
class
they
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.
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Pinkerton does not and cannot illustrate how the two
issues are so inextricably intertwined that resolution of the
appealable
class
certification
issue
necessarily
non-appealable federal enclave doctrine issue.
resolves
the
This is because,
in fact, the two issues are distinct legal concepts.
Whether
Appellees have satisfied the Rule 23(a) prerequisites for class
certification has no bearing on whether Appellees’ state law
claims are ultimately barred under the federal enclave doctrine.
Nor can Pinkerton illustrate how review of the federal enclave
doctrine issue is necessary in order to ensure our meaningful
review of the class certification issue.
Although analysis of
the former could ultimately foreclose the need for analysis of
the latter, resolution of the federal enclave doctrine issue is
not necessary to review the class certification issue. 12
The
economy,
which
concern
should
raised
not
by
serve
pendent appellate jurisdiction.
Pinkerton
as
the
speaks
basis
to
for
judicial
exercising
See Rux, 461 F.3d at 475 (“We
are constrained by the language of the Supreme Court as well as
12
Indeed, we have previously refused to invoke pendent
appellate jurisdiction even though a determination of the
pendent issue had the possibility to foreclose the underlying
suit.
See Ochoa Lizarbe v. Rivera Rondon, 402 F. App’x 834,
837–38 (4th Cir. 2010) (concluding that although resolution of
the pendent issues in the defendant’s favor could have disposed
of the plaintiffs’ suit, they did not warrant our consideration
because “[t]he doctrine of pendent appellate jurisdiction is not
focused on efficiency . . . .”).
27
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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.
624
F.3d
537
(affirming
determination
but
district
refusing
to
court’s
See, e.g., Myers,
class
exercise
certification
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, 131 S. Ct. 2541 (2011), a more rigorous analysis
into
the
Rule
23
requirements
is
ensure meaningful appellate review.
28
necessary
in
this
case
to
Specifically, there must be
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a more rigorous analysis into whether there are common questions
of law or fact, whether Appellees’ claims are typical of the
class as a whole, and whether common questions of law or fact
predominate
over
any
questions
affecting
only
individual
members.
We
also
decline
to
jurisdiction
over
Pinkerton’s
exercise
motion
pendent
for
appellate
partial
summary
judgment to consider whether Appellees’ state law claims are
barred under the federal enclave doctrine.
We exercise pendent
appellate
own
jurisdiction
sparingly,
at
our
discretion,
as
“[it] is an exception of limited and narrow application driven
by considerations of need, rather than of efficiency.”
Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006).
has
not
shown
that
the
federal
enclave
doctrine
Rux v.
Pinkerton
is
either
inextricably intertwined with, or necessary to ensure meaningful
appellate review of, the Rule 23 issues of class certification
sufficient
to
Pinkerton’s
invoke
federal
enclave
pendent
doctrine
appellate
argument,
jurisdiction.
if
necessary,
should be considered in the wake of a final order.
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
29
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