by Michael Fox
At least not in two circuits. Today, the 6th Circuit joins the 5th in holding that it has no jurisdiction to consider an appeal of a district court's order conditionally certifying a wage and hour class action and authorizing notice to be mailed to potential class members. According to the Court:
The correct inquiry examines whether Wal-Mart may now appeal the court’s conditional conclusion that the 1,200 ASMs, or however many choose to opt into the suit, are similarly situated for the purposes of § 216(b). When viewed through the appropriate lens, the district court’s order clearly fails to satisfy the Cohen test. The order describes itself as conditional and temporary, and there is no reason our court could not, following an appeal from final judgment, determine that part or all of the plaintiff group was improperly deemed to be similarly situated and therefore improperly notified and included by opt-in. We see no obstacle to our court’s later review of this issue.
Comer v. Wal-Mart Stores, Inc. (6th Cir. 7/19/06) [pdf]. The Court admitted that there would be no way to "de-notice" the 1,200 assistant store managers who would now be invited to join the lawsuit, but that practical impact was not enough to provide jurisdiction.
As I have mentioned many times in this blog, federal courts jealously guard their role as courts of limited jurisdiction. As a philosophical matter that is sound -- few things are more dangerous than unchecked power. Still, I think reviewing this type of decision makes a lot of sense. The solution is not for courts to stretch to find jurisdiction where it does not exist, but for Congress to give them the power; unfortunately, that is not likely to happen.