United States District Court, D. Connecticut
Jeffrey Alker Meyer United States District Judge
to 28 U.S.C. § 1292(b), defendants have moved to certify
this Court's order of July 19, 2016, denying their motion
to dismiss. See Kinkead v. Humana, Inc., __F.Supp.3d
__, 2016 WL 3950737 (D. Conn. 2016). Specifically, defendants
seek review of my conclusion that the federal administrative
regulation that is allegedly applicable to this case took
effect on January 1, 2015. Defendants also move for a stay
pending appeal. For the reasons that follow, I will grant
defendants' motion for certification and for a stay
pending any interlocutory appeal.
discussed in my prior ruling, the U.S. Department of Labor
(DOL) promulgated a new administrative rule in 2013 to expand
the class of workers to whom employers must pay higher wages
for overtime work under the Fair Labor Standards Act (FLSA).
The rule had an effective date of January 1, 2015. But just
as the rule was to take hold, a federal district judge in the
District of Columbia vacated the rule on the ground that it
was inconsistent with the statute. The DOL appealed, and
several months later the D.C. Circuit reversed the district
court's decision, issuing its mandate in October 2015.
The Supreme Court subsequently denied certiorari.
brought this putative class action to recover pay for
overtime hours she worked between January and May 2015 as a
home health care worker employed by defendants at a facility
in Connecticut. Because plaintiff falls within the expanded
class of workers covered by the new administrative rule-and
because plaintiff seeks overtime pay for work performed
between the rule's stated effective date in January 2015
and the D.C. Circuit's mandate reversing the district
court's vacatur of the rule in October
2015-defendants' liability in this case hinges on the
date that the rule is determined to have taken effect.
their motion to dismiss, defendants argued that employers
were liable to pay overtime only from the date that the D.C.
Circuit's mandate issued in October 2015. In opposition,
plaintiff argued that-notwithstanding the interim vacatur of
the rule by the D.C. district court- that the D.C.
Circuit's decision had retroactive effect, fully
reinstating the agency's effective date for the new rule
to impose liability on employers as of January 1, 2015.
19, 2016, I denied defendants' motion to dismiss. I
concluded that the D.C. Circuit's decision reversing the
district court's vacatur applied retroactively, and
therefore the new rule took effect on the effective date set
forth by the agency. My decision was based on the
well-established principle that judicial decisions
“must be given full retroactive effect in all cases
still open on direct review and as to all events, regardless
of whether such events predate or postdate our announcement
of the rule.” Harper v. Virginia Dep't of
Taxation, 509 U.S. 86, 97 (1993).
have now moved to certify my July 19 order for interlocutory
appeal pursuant to 28 U.S.C. § 1292(b), and for a stay
pending appeal. See Doc. #58. Plaintiff opposes
defendants' motion for certification and stay.
See Doc. #65.
Court may certify an otherwise non-appealable order for
interlocutory review if the order “ involves a
controlling question of law as to which  there is
substantial ground for difference of opinion” and
“ an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b) (internal brackets added).
Certification is permitted “only when [the] three
enumerated factors suggesting importance are all
present.” Bullard v. Blue Hills Bank, 135
S.Ct. 1686, 1696 (2015). Even if a district court certifies
an order for appeal under § 1292(b), the party seeking
review “still has the burden of persuading the court of
appeals” to take the appeal, and “[t]he appellate
court may deny the appeal for any reason, including docket
congestion.” Coopers & Lybrand v. Livesay,
437 U.S. 463, 475 (1978).
respect to the first factor, I agree with both plaintiff and
defendants that “a controlling question of law”
is involved here. “It is clear that a question of law
is ‘controlling' if reversal of the district
court's order would terminate the action.”
Klinghoffer v. S. N.C. Achille Lauro, 921 F.2d 21,
24 (2d Cir. 1990). If the Second Circuit were to find that
the DOL's new rule did not take effect until October
2015, then plaintiff's complaint would be dismissed, and
the case would be terminated. This question is therefore not
only controlling, but potentially outcome-dispositive.
ahead to the third factor, I find that an immediate appeal
may materially advance the ultimate termination of this
litigation. Plaintiff seeks to certify a nationwide class of
similarly situated employees who worked for defendants and
were denied overtime pay during the time period in question.
If the Second Circuit were to reverse my order on
interlocutory appeal, the litigation would be terminated, and
the parties would be spared the expensive and time-consuming
process of class certification and discovery. And if the
Second Circuit were to uphold my order, the parties would be
spared an appeal on this central issue at the conclusion of
the district court proceedings. See Doc. #58-1 at 13
(indicating that defendants intend to appeal my July 19 order
as a matter of right at the conclusion of the proceedings).
closest question here concerns the second factor: whether
there is a “substantial ground for difference of
opinion” about whether the DOL regulation took effect
as of January 1, 2015, rather than as of the later date when
the D.C. Circuit's mandate issued. The retroactivity of
an appellate court's reinstatement of an administrative
rule that has been previously vacated by a district court
appears to be an issue of first impression in this circuit.
district courts elsewhere across the country have reached
conflicting conclusions when presented with this question in
the context of the particular DOL rule at issue in this case.
Two district courts from Maryland and Ohio have found-albeit
with little explanation-that the DOL's new rule did not
go into effect prior to the D.C. Circuit's
mandate.More recently, another ...