On Appeal from the United States District Court for the District of New Jersey
Before: ADAMS, HIGGINBOTHAM, and SLOVITER, Circuit Judges
This is an appeal from an order conditionally certifying a class and directing notice to potential class members in an age discrimination suit brought against appellant, Xerox Corporation. Xerox argues that the order conditionally certifying the class is appealable under the collateral order doctrine announced in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). We disagree, and dismiss the appeal on the ground that we have no appellate jurisdiction at this time.
On March 8, 1983, Jules Lusardi and three other plaintiffs filed this class action against Xerox, pursuant to section 7 of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 626 (1982). The amended complaint, filed March 24, 1983, alleged that Xerox has a nationwide policy and practice of age-based discrimination. Plaintiffs sought class certification, and Xerox responded with motions to strike certain allegations in the amended complaint, or in the alternative to dismiss the amended complaint.
On August 31, 1983, the district judge ordered that while a rule 23(b)(2), Fed. R. Civ. P., class action would be improper, he would conditionally certify an opt-in class under § 7(b) of the ADEA upon the filing of a second amended complaint. Section 7(b) of the ADEA incorporates by reference § 16 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b) (1982), which provides that "no employee shall be a party to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." On January 31, 1984, after the second amended complaint had been filed and a hearing had been held on the propriety of class certification and notice, the district court directed, inter alia, that the class be conditionally certified,*fn1 that Xerox provide plaintiffs with a list of all potential class members, and that plaintiffs provide notice of the impending suit to the persons so identified by Xerox.*fn2 App. at 351-54; see also Lusardi v. Xerox Corp., 99 F.R.D. 89 (D.N.J. 1983). The court characterized the notice and questionnaire as a discovery device that ultimately would enable it to determine whether a group of "similarly situated" individuals in fact exists. App. at 239-40. It stated that if the evidence elicited by the questionnaires and consent forms did not demonstrate an adequate number of sufficiently similar claims, class certification would be withdrawn. App. at 233-35. The court declined to certify its order for interlocutory appeal.
The terms of the notice, consent form, and questionnaire were agreed to by counsel for the parties. The notices, which were mailed on February 24, 1984, stated that Xerox had denied liability, that class certification was conditional, and that subsequent decertification "may result in any consent to this Notice being vacated."
On February 1, 1984, Xerox simultaneously filed a Notice of Appeal from the court's order and a Petition for a Writ of Mandamus. The mandamus petition, which advanced similar arguments to those that Xerox makes in the present appeal, was denied by this Court on February 9, 1984. Thereafter, plaintiffs filed a motion to dismiss Xerox" appeal and to award costs and attorney's fees. Xerox filed a cross-motion seeking costs and attorneys' fees with respect to the appellees' motion to dismiss the appeal.
The merits of Xeroxl raise novel and unresolved questions. There is substantial support in the case law for Xerox" position that a district court may not authorize a class-based notice in an ADEA action. See, e.g., Dolan v. Project Construction, 725 F.2d 1263 (10th Cir. 1984); Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir. 1977). But there is equally strong precedent supporting the district court's order authorizing notice to a conditional ADEA class. See, e.g., Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335 (2d Cir.), cert. denied, 441 U.S. 944, 60 L. Ed. 2d 1046, 99 S. Ct. 2162 (1979); see also, Woods v. New York Life Ins. Co., 686 F.2d 578 (7th Cir. 1982); Allen v. Marshall Field & Co., 93 F.R.D. 438 (N.D. Ill. 1982). This Court has not yet addressed the notice issue.
We may not reach the merits of Xeroxclaims, at least at this time, however, unless we have jurisdiction to entertain the appeal. An order conditionally certifying a class and authorizing notice is clearly not a final judgment terminating the litigation. Thus, we do not have jurisdiction to consider the appeal under the final-judgment rule of 28 U.S.C. § 1291 (1982). The district court declined to certify an interlocutory appeal under 28 U.S.C. § 1292(b) (1982), and a previous panel of this Court denied Xerox's petition for mandamus challenging that decision. Consequently, the order is appealable only if it comes within the "collateral order" exception to the final-judgment rule. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949).
"To come within the "small class' of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978); see also, Rodgers v. United States Steel Corp., 508 F.2d 152, 159 (3d Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975). We have consistently construed the Cohen exception narrowly rather than expansively. See Rodgers, 508 F.2d at 159. Each of the ...