Albritton v. Cagle's, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ NOV 30, 2007
THOMAS K. KAHN
No. 06-15439 CLERK
________________________

D. C. Docket No. 05-00074-CV-WLS-1

FRANCES ALBRITTON,
ANA ALCANTAR, et al.,

Plaintiffs-Appellants,

versus

CAGLE’S, INC.,

Defendant-Appellee.

________________________

No. 06-15612
________________________

D. C. Docket No. 05-00075-CV-WLS-1

WINFRED ABDULLAH,
CHARLIE ADAMS, et al.,

Plaintiffs-Appellants,

versus
EQUITY GROUP-GEORGIA DIVISION, LLC,

Defendant-Appellee.

________________________

Appeals from the United States District Court
for the Middle District of Georgia
_________________________

(November 30, 2007)

Before EDMONDSON, Chief Judge, CARNES and FAY, Circuit Judges.

CARNES, Circuit Judge:

These appeals arise from some of the “donning and doffing” litigation, a

series of cases brought around the country by employees alleging that their

employers owe them compensation under the Fair Labor Standards Act for time

spent putting on and taking off protective or sanitary clothing that is necessary for

their work. See, e.g., Gorman v. Consol. Edison Corp., 488 F.3d 586 (2d Cir.

2007); Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir. 2004); Tum v.

Barber Foods, Inc., 360 F.3d 274 (1st Cir. 2004), aff’d in part, rev’d in part sub

nom IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S. Ct. 514 (2005); De Asencio v.

Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003).

The lawsuits underlying these appeals grew out of an earlier one that led to

our decision in Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th Cir. 2007). They

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include the same defendants—two companies operating chicken processing plants

in the state of Georgia—and many of the same potential plaintiffs as the Anderson

case did. The issues stem from the statutory requirement that no employee may be

a “party plaintiff” in an FLSA collective action until his written consent is filed in

the court where the action is pending. See 29 U.S.C. § 216(b).

I.

The complaint in the Anderson lawsuit was filed in September 2000 by

three named present or former employees of Cagle’s, Inc., and nine named present

or former employees of Equity Group-Georgia Division, LLC (then called Cagle

Foods JV, LLC). See Anderson, 488 F.3d at 949 & n.1. They alleged on behalf of

themselves and other similarly situated individuals that the two companies had

violated the FLSA by not compensating their employees for the time required to

don and doff the protective clothing they were required to wear while working on

the chicken processing line. Id. at 949–50.

The district court followed the procedure for managing FLSA collective

actions that we had described in Hipp v. Liberty National Life Insurance Co., 252

F.3d 1208 (11th Cir. 2001), by conditionally certifying the collective action and

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allowing counsel to notify potential opt-in plaintiffs of their right to participate in

the proceedings.1 Anderson, 488 F.3d at 950.

To carry out the notification process, the plaintiffs’ lawyers sent notices to

“[a]ll current and former hourly wage employees” of Cagle’s, Inc. and Equity

Group. Issued under the Anderson v. Cagle’s, Inc. case style, the notice

summarized the basic allegations in the complaint, described the people who were

eligible to join the lawsuit, and told recipients how they could join if they wished

to do so. For example, one section, entitled “YOUR RIGHT TO JOIN THIS SUIT

AS A PARTY PLAINTIFF,” said this:

If you believe that either Cagle’s, Inc., and/or [Equity Group]
has failed to properly compensate you for your time spent changing
into and out of protective clothing/equipment before and after your
shift, and/or for your lunch break, you have the right to make this
claim against Cagle’s, Inc., or [Equity Group] as a plaintiff in this
lawsuit.

The notice referred interested readers to an attached “Consent to Become Party

Plaintiff form,” but told them: “It is entirely your own decision whether to join

this lawsuit. You are not required to take any action unless you so desire.”

1
The collective action in Hipp actually was brought under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621 et seq. That Act incorporates by reference the
FLSA’s collective action provision, see 29 U.S.C. § 626(b), so the Hipp procedure applies in
both contexts.

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 The consent form itself also bore the style of the Anderson v. Cagle’s, Inc.

case. By signing the consent form, an employee agreed to the following three

propositions stated in the form:

1. I hereby agree to pursue my claims against CAGLE’s, INC.,
and/or [Equity Group] and any related companies, arising out
of federal and/or state wage-and-hour laws in the above-
captioned lawsuit.

2. I understand and acknowledge that this lawsuit is being
brought under the federal Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. § 201, et seq., to secure unpaid minimum
wages, unpaid overtime wages, liquidated damages, attorneys’
fees, costs, and other relief arising out of my employment with
CAGLE’s, INC., and/or [Equity Group] and any related
companies. I hereby consent, agree, and opt-in to become a
party plaintiff and to be bound by any settlement of this action
or adjudication by the court.

3. I hereby designate GORDON, SILBERMAN, WIGGINS AND
CHILDS, P.C., the LAW OFFICE OF GRANT MORRIS, and
GARDNER, WILLIS, SWEAT & GOLDSMITH to represent me in the
proposed suit.

The forms concluded by asking employees to indicate the plant in which they had

worked, the dates of their employment, the positions they had held, and their union

status. Although some 2,200 current and former employees of the two Anderson

defendants signed and returned these forms, several hundred of them were

thereafter dismissed from the lawsuit based on reasons such as the statute of

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limitations or their failure to comply with discovery requests. Anderson, 488 F.3d

at 950. Those dismissals left just over 1,800 opt-in plaintiffs remaining. See id.

After discovery, the district court granted the motions of the two defendants,

severing the claims against Cagle’s, Inc. from those asserted against Equity Group,

and decertifying the collective action. Id. The court did that because the

differences in work locations, work assignments, compensation structures, and

protective clothing meant that the plaintiffs were not similarly situated enough to

maintain a collective action under the FLSA. Id. at 952.

After the court de-certified the class, both Cagle’s, Inc. and Equity Group

filed motions for summary judgment. Id. at 950. Before the district court could

rule on these motions, the remaining named plaintiffs in the lawsuit against

Cagle’s, Inc. settled their claims, which led the district court to deny Cagle’s,

Inc.’s motion for summary judgment as moot. Id. The court then granted Equity

Group’s motion for summary judgment and entered a judgment against the

remaining named plaintiffs in the Equity Group lawsuit on all of their claims. Id.

On appeal, we affirmed the district court’s orders decertifying the collective

action, granting summary judgment, and entering judgment in favor of Equity

Group. Id. at 950–54, 960.

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 In June 2005, which was about two months after the district court issued its

decertification order in Anderson, the lawyers who had represented the Anderson

plaintiffs filed two substantially identical complaints initiating the present two

lawsuits. The complaint in Abdullah v. Equity Group, No.06-15612, listed several

hundred plaintiffs in its caption, all of whom, the complaint said, were “former

opt-in plaintiffs” from Anderson who are “current or former employees of [Equity

Group] . . . at [its] Camilla processing facility.” The complaint in Albritton v.

Cagle’s, Inc., No. 96-15439, listed hundreds of former Anderson opt-in plaintiffs,

all of whom were “current or former employees of [Cagle’s] . . . at [its] Macon,

Perry, Pine Mountain Valley, [or] Atlanta processing facilities.” Each of the

named plaintiffs in these two lawsuits had signed and returned consent forms in

the Anderson lawsuit during 2002, but the attorneys purporting to represent them

concede that they did not obtain new consent forms from any of the plaintiffs

before filing these lawsuits in 2005.

The two complaints before us list far more individuals as named plaintiffs

than the complaint in Anderson did. In Anderson there were only 12 named

plaintiffs but there were approximately 2,200 opt-in plaintiffs of whom 388 were

dismissed for one reason or another, leaving about 1,812 at the time the court de-

certified the class. Anderson, 488 F.3d at 950. By contrast in the present two

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lawsuits there are a total of approximately 1,016 named plaintiffs (by the district

court’s count) and no opt-in plaintiffs. And, of course, what was originally a

single lawsuit against both defendants has been refiled as two separate lawsuits,

one against each. Considered together, the two lawsuits do allege the same facts

and make the same claims that the Anderson lawsuit did.

Like the Anderson complaint, the complaints in these two lawsuits are

attempts to bring an FLSA collective action. Each complaint is labeled

“COLLECTIVE ACTION COMPLAINT FOR VIOLATIONS OF FAIR LABOR

STANDARDS ACT OF 1938.” Although both complaints do state in one place

that the plaintiffs are “join[ing] their individual claims pursuant to Rule 20(a) of

the Federal Rules of Civil Procedure,” their principal thrust is the assertion by the

named plaintiffs of claims “on behalf of themselves and all others similarly

situated.” The complaints expressly invoke the collective action provision found

in § 16(b) of the FLSA, codified at 29 U.S.C. § 216(b), stating in their

introductions, for example, that “[t]his suit is brought on behalf of the Plaintiffs

and all others similarly situated pursuant to § 216(b) of the FLSA.”

In each case the defendant employer moved to dismiss the complaint,

contending primarily that the would-be plaintiffs had not complied with the filed-

consent requirement of FLSA § 216(b). The plaintiffs’ counsel responded that

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individual, named plaintiffs in a collective action are not required to file consent

forms, and that even if they were, the forms that had been filed in the Anderson

lawsuit should suffice to authorize the current lawsuits.

The district court disagreed. Focusing on the specifics of the notices and

blank consent forms that were used by plaintiffs in the Anderson case, the court

pointed out that the terms “clearly and specifically invited [the potential opt-in

plaintiffs] to join as party plaintiffs in Anderson, and not in this or any other new

or additional suit.” For that reason, the court concluded that the consent conveyed

by the Anderson form was limited to that case and “not freely transferrable to this

or any other case.” On that basis, the court dismissed both lawsuits for failure to

comply with the § 216(b) consent requirement, leading to these consolidated

appeals by the plaintiffs in each case.

II.

The plaintiffs’ position that these lawsuits comply with § 216(b) is

ultimately dependent on the proposition that the written consents of the plaintiffs

in the Anderson case authorized their attorneys to file not only that lawsuit, but

also the two complaints in these later two lawsuits. The carryover consent

premise is essential to the contention that these two lawsuits should be allowed to

proceed as collective actions, because § 216(b) plainly states that such an action

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may not proceed as to any person until a formal written consent from that person is

filed in court. Plaintiffs do not dispute that, nor do they contend that any written

consent was filed as to any of the plaintiffs after these two lawsuits were filed.

The carryover consent premise is also essential to the plaintiffs’ argument

that, wholly apart from § 216(b), these two lawsuits may proceed as joint actions,

which are generally permitted under Federal Rule of Civil Procedure 20. An

attorney may not file lawsuits without authorization of the plaintiffs on whose

behalf the lawsuit is purportedly filed.

The attorneys who wish to represent the plaintiffs do not contend that they

had any affirmative authorization from their purported clients to file these two

lawsuits, other than the written consents they had obtained and filed in the earlier

Anderson lawsuit. At oral argument they conceded that those earlier consents

were the only affirmative authorization they had to proceed. They made a similar

concession in the district court. 06-15612, R1:22:5; 06-15439, R1:15:4

(“Plaintiffs’ counsel admits that he had not obtained the specific consent or

permission of the Anderson opt-in Plaintiffs to file this action.”).

The attorneys have argued to us that it was enough that they sent letters to

the Anderson plaintiffs giving them an opportunity to affirmatively opt out of

these two lawsuits by writing and requesting not to be included. The problem with

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that argument, of course, is that § 216(b) requires that would-be plaintiffs

affirmatively opt in, and that they do so in writing, and that the writing be filed in

court before they can be included in the lawsuit. The statute does not permit them

to be included simply because they fail to act when given the opportunity.

Plaintiffs’ counsel argues that it is enough that the plaintiffs were given “an

opportunity to decline participation in the new actions.” Accepting this argument

would require us to convert a statutory opt in requirement into an opt out one.

We are not empowered to rewrite statutes. Artuz v. Bennett, 531 U.S. 4, 10,

121 S. Ct. 361, 365 (2000) (“Whatever the merits these and other policy arguments

may have, it is not the province of this Court to rewrite the statute to accommodate

them.”); Wright v. Sec’y for the Dep’t of Corrs., 278 F.3d 1245, 1255 (11th Cir.

2002) (“Our function is to apply statutes, to carry out the expression of the

legislative will that is embodied in them, not to ‘improve’ statutes by altering

them.”); CBS Broad., Inc. v. Echostar Commc’ns Corp., 265 F.3d 1193, 1213

(11th Cir. 2001) (“‘It is not the function of the courts to amend statutes under the

guise of statutory construction.’”) (quoting Fedorenko v. United States, 449 U.S.

490, 514 n.35, 101 S. Ct. 737, 751 (1981)); Harris v. Garner, 216 F.3d 970 (11th

Cir. 2000) (“We will not do to the statutory language what Congress did not do

with it, because the role of the judicial branch is to apply statutory language, not to

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rewrite it.”). Under the statute, as written, the plaintiffs did nothing relevant after

opting into the Anderson lawsuit three years before the present two lawsuits were

filed.

Which is why, as we said before, this appeal turns on whether the consents

that the plaintiffs filed in the Anderson lawsuit carry over to these two later

lawsuits. The district court concluded that they did not, explaining:

Upon review of the notices and blank consent forms sent by
counsel to Plaintiffs among others, the Court finds that the terms
contained therein clearly and specifically invited said persons to join
as party plaintiffs in Anderson, and not in this or any other new or
additional suit which might be brought or filed. It is further found
that neither the notices nor the blank consent forms suggested or
otherwise inferred that counsel's representation of said persons,
should they choose to join Anderson, existed beyond the limited
confines of that lawsuit. Accordingly, it is found that upon the filing
of these consent forms, each Plaintiff manifested his/her intent to join
Anderson, and no other case, according to the terms of representation
contained therein. It is therefore found that the consent forms at issue
are limited to counsel's representation of Plaintiffs in Anderson and
are not freely transferrable to this or any other case.

06-15612, R1:22:5; 06-15439, R1:15:4. We can find no fault with that reasoning.

It is not just that the notices and consents were captioned with the Anderson

lawsuit style, but also that both specifically referred to that particular lawsuit and

only that lawsuit. There was no attempt to request or give a general consent for

litigation of the claims in whatever case might be filed. Instead, the consent was

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limited to “agree[ing] to pursue my claims . . . in the above-captioned lawsuit.” It

did not purport to authorize a different lawsuit that would be filed three years later.

A lot can change in three years, including the willingness of an employee or

former employee to bring or join a lawsuit.

The fact that the plaintiffs’ attorneys, after the Anderson lawsuit was

dismissed, did send notices to their former clients in that case informing them that

new lawsuits were being filed and that they would be presumed to consent to

being a party to the new litigation unless they notified counsel to the contrary is

telling. It tells us that the attorneys recognized, as we do, that the consents that

had been filed in the Anderson case were not enough to satisfy the § 216(b)

requirement as it applies to the two new lawsuits. The attorneys were right about

that. What they were wrong about is their belief that the statutory requirement that

would-be plaintiffs affirmatively opt into a lawsuit by expressing their consent in a

writing filed with the court could be satisfied by the failure to opt out—by silence.

Failing to opt out is not the same as opting in. Inaction is not the same as action.

Our decision in Prickett v. DeKalb County, 349 F.3d 1294 (11th Cir. 2003),

which the plaintiffs rely on, does provide guidance but not in the direction they

would have us go. The opt-in plaintiffs in that case had signed consent forms

conveying their “consent to have the named Plaintiffs in this case represent [their]

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interests in adjudicating [their] claims for overtime compensation and any other

benefits . . . under the FLSA.” Id. at 1297. The question on appeal was whether

the opt-in plaintiffs had joined only the claims that were specified in the complaint

at the time they signed the forms, or instead whether their consent covered an

additional claim that was added to the complaint by a later amendment. Id. We

held that the consents did extend to the claim that was added thereafter, reasoning

that “[t]he consent given was for the named plaintiffs to represent the interests of

the employee in adjudicating all claims that employee had under the FLSA.” Id.

That language from the Prickett opinion, plaintiffs insist, requires us to give

the loosest possible construction to § 216(b) consent forms, but that’s not what

Prickett teaches. Instead, the lesson from Prickett is that we must interpret consent

forms according to the plain meaning of their language. See id. at 1297–98

(“Added claims no less than initial claims are, in the language of the consent form,

‘my claims for overtime compensation and any other benefits . . . under the

FLSA.’”) (emphasis added). The consent forms in Prickett used broad language,

and we interpreted them accordingly.

Here, by contrast, as we have explained, the consent forms used narrow

language in describing the litigation that they authorized. The language of the

forms limited the consent to joining the Anderson lawsuit. We interpret the

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consent forms here, as we did those in Prickett, according to their plain terms. We

will not rewrite those forms to broaden their scope, just as we did not rewrite the

forms in Prickett to narrow their scope.

The plain language of the statutory provision supports this approach. It

instructs us that, “No employee shall be a party plaintiff to any such action [under

the Fair Labor Standards Act] 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.” 29 U.S.C. § 216(b) (emphasis added). When the attorneys filed these

two new lawsuits, they commenced new actions—distinct from the original

Anderson action to which the plaintiffs had consented to opt into and be bound by.

Having initiated new actions, § 216(b) required the attorneys to file new consents

with the court.

For all of these reasons, we agree with the district court that the consents the

plaintiffs had filed to join the Anderson litigation in 2002 were limited to that

litigation, and they do not carry over to the two present lawsuits which were filed

in 2005. The earlier consents do not fulfill the consent requirement for these later

lawsuits, viewing them as collective actions under § 216(b), nor can those earlier

consents authorize the attorneys to file these later lawsuits as a joint action under

Fed. R. Civ. P. 20.

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 III.

The judgment of the district court in these two cases is AFFIRMED.

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