IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21170
A.J. BERTULLI; JOE GRINDER; LARRY DOURIS;
JOAN SANDSTROME; MARC BLACKMORE,
Plaintiffs-Appellees,
versus
INDEPENDENT ASSOCIATION OF CONTINENTAL PILOTS;
CONTINENTAL AIRLINES,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
February 13, 2001
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Pilots filed this class action against their pilots’
association and airline claiming injury suffered as a result of
seniority lost when the pilots’ association and airline changed the
seniority rankings of their pilots. The class was certified under
Rule 23(b)(3).1 Defendants appeal the certification order under
Rule 23(f).2
1
Fed. R. Civ. P. 23(b)(3) (2000).
2
Fed. R. Civ. P. 23(f) (2000).
The pilots’ association and airline argue that the plaintiffs
lack standing and that the certification of the class was an abuse
of discretion. We hold that standing is reviewable in a Rule 23(f)
interlocutory appeal, that the plaintiffs have standing, and that
the certification of the class was not an abuse of discretion.
I
Plaintiffs are pilots for Continental Airlines. They filed
suit against the defendants, Continental Airlines and the
Independent Association of Continental Pilots, alleging that the
Pilots’ Association violated its duties under the Railway Labor
Act3 and the Labor-Management Reporting and Disclosure Act.4 The
plaintiffs claim that they were injured when they lost seniority
after the Pilots’ Association and Continental Airlines agreed to
restore the seniority of eleven pilots who had lost their seniority
when they participated in a strike in 1983-85. The plaintiff class
is composed of all Continental pilots whose seniority fell as a
result of the action by the Pilots’ Association; the class is
alleged to number more than 1,700 pilots. Each class member’s
seniority rank fell by between one and eleven. The loss of
seniority harmed plaintiffs, they claim, because seniority
determines the priority of a pilot’s bid for a particular work
3
45 U.S.C.A. § 151 et seq. (2000). The RLA applies to airlines. 45
U.S.C.A. § 181.
4
29 U.S.C.A. § 411 et seq. (2000).
2
assignment. Assignments differ in terms of pay, benefits, and
choice of routes and schedules.
Plaintiffs describe two violations of statutory duties.
First, they claim that the Pilots’ Association violated the LMRDA
when it denied the pilots their right to vote on the changes in
seniority that the Pilots’ Association negotiated with Continental.
Second, they claim that the Pilots’ Association violated its duty
of fair representation under the RLA because the seniority action
was arbitrary, discriminatory, or in bad faith.5 Plaintiffs seek
back pay and injunctive relief to undo the change in seniority.6
II
Defendants first argue that plaintiffs lack standing to bring
this suit. We note, initially, that under Rule 23(f), a party may
appeal only the issue of class certification; no other issues may
be raised.7 Standing, however, goes to the constitutional power of
a federal court to entertain an action,8 and this court has the
5
See Shea v. Int’l Ass’n of Machinists and Aerospace Workers, 154 F.3d
508, 512 (5th Cir. 1998).
6
The LMRDA authorizes “relief (including injunctions) as may be
appropriate.” 29 U.S.C.A. § 412. Courts have interpreted the RLA to include the
implied duty of fair representation and have held that violation of this duty is
susceptible to “the usual judicial remedies of injunction and award of damages.”
Shea, 154 F.3d at 512.
7
See Fed. R. Civ. P. 23(f) (providing for appeal of certification orders);
28 U.S.C.A. § 1291 (2000) (stating general rule that only final judgments may be
appealed); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)
(holding that class certification cannot involve inquiry into the merits).
8
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992).
3
duty to determine whether standing exists even if not raised by the
parties.9 As we have held, “[t]his constitutional threshold must
be met before any consideration of the typicality of claims or
commonality of issues required for procedural reasons by [Rule]
23.”10 Standing is an inherent prerequisite to the class
certification inquiry; thus, despite the limited nature of a Rule
23(f) appeal, defendants can raise the issue of standing before
this court.11
In addressing the merits of this claim, we begin with Lujan v.
Defenders of Wildlife,12 which describes the “irreducible
constitutional minimum of standing”: (1) injury-in-fact, (2)
causation, and (3) redressability.13 Defendants argue that the
9
Christoff v. Bergeron Indus., Inc., 748 F.2d 297, 298 (5th Cir. 1984)
(duty to determine subject matter jurisdiction); see also Warth v. Seldin, 422
U.S. 490, 502 (1975) (“Unless [the class representatives] can thus demonstrate
the requisite case or controversy between themselves personally and respondents,
‘none may seek relief on behalf of himself or any other member of the class.’”).
10
Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A 1981).
11
The Eleventh Circuit has recently reached this same conclusion. See
Carter v. West Publishing Co., 225 F.3d 1258, 1262 (11th Cir. 2000). This
circuit recently considered standing in an interlocutory appeal from a class
certification, although under a different procedural posture. See Washington v.
CSC Credit Servs. Inc., 199 F.3d 263, 265-68 (5th Cir. 2000), cert. denied, 120
S. Ct. 2718 (2000). The appeal in Washington was brought under 28 U.S.C. §
1292(b), not Rule 23(f), so it was not limited to issues of class certification.
Id. at 265; see also Washington v. CSC Credit Servs., Inc., 180 F.R.D. 309 (E.D.
La. 1998) (certifying for appeal “all issues fairly presented” in the court’s
order).
12
504 U.S. 555 (1992).
13
Id. at 560-61.
4
named plaintiffs have not suffered any injury-in-fact.14 Defendants
argue that they presented uncontroverted evidence that the
challenged seniority changes did not affect the named plaintiffs’
abilities to get the work assignments they desired; each plaintiff
has received the assignments bid for. Thus, defendants argue,
plaintiffs have demonstrated no monetary loss and lack standing.
This cramped view misunderstands standing. First, injury need
not be monetary or tangible; even psychological or aesthetic injury
is sufficient.15 What courts require, however, is that the injury
be personal.16 Loss of seniority is an injury within a commonsense
understanding of the term, and one that is suffered by the
plaintiffs themselves. It carries with it the possibility of
several forms of concrete injury, such as slower promotion, greater
likelihood of being laid off, and lower benefits.17 This circuit
has entertained RLA actions regarding seniority decisions by
unions.18
14
Causation and redressability are easily met by the plaintiffs’
allegations and evidence that the defendants’ actions caused their loss of
seniority, and that the relief sought would remedy the harm. Also, this case
does not implicate any of the prudential limitations on standing. See Allen v.
Wright, 468 U.S. 737, 751 (1984) (describing prudential limits on standing).
15
See Defenders of Wildlife, 504 U.S. at 562-63.
16
See id. at 563.
17
In addition, of course, to the possibility that plaintiffs’ bidding for
routes would be affected.
18
See Rogers v. Air Line Pilots Ass’n, Int’l, 988 F.2d 607 (5th Cir.
1993). The defendants cite to a Seventh Circuit case, Rakestraw v. United
Airlines, Inc., 981 F.2d 1524 (7th Cir. 1992), claiming that a loss of seniority
is not an injury for which a plaintiff pilot can seek relief. They misread
Rakestraw. The Seventh Circuit stated, “[Our precedent] holds that a union may
5
Second, the statutory violations that plaintiffs claim
describe two specific injuries: first, loss of “fair
representation” under the RLA; second, loss of voting rights under
the LMRDA. These are “procedural rights” protected by statute, the
loss of which is itself an injury without any requirement of a
showing of further injury.19 Defenders of Wildlife describes, as
examples of procedural rights, the right to a hearing prior to
deprivation or the right to an agency completing an environmental
impact statement before beginning a project.20 The loss is not
merely the subsequent deprivation, but the right not to suffer a
deprivation without proper process. In this case, the plaintiffs
allege that the Pilots’ Association deprived them of seniority
without a vote and without the Pilots’ Association fairly
representing them.
Plaintiffs have standing.
III
We review the district court’s certification decision for
abuse of discretion.21 A class should be certified on a claim-by-
not juggle the seniority roster for no reason other than to advance one group of
employees over another.” Id. at 1534. The union’s duty of fair representation
constrains its ability to alter seniority rankings. See id.
19
See Defenders of Wildlife, 504 U.S. at 572 n.7.
20
See id. at 572 & n.7.
21
See Pederson v. Louisiana State Univ., 213 F.3d 858, 866 (5th Cir.
2000).
6
claim basis;22 thus, we consider the RLA and LMRDA claims
independently under each requirement for certification.
Composition of the Class
Defendants first argue that the class definition is
underinclusive for the LMRDA claim.23 Plaintiffs allege a denial
of the pilots’ right to vote on the seniority change. Since all
Continental pilots have a procedural right to vote protected by the
LMRDA, the district court could have defined the class to include
all Continental pilots. But the district court may choose one
possible class definition over another in order to ensure that the
requirements of Rule 23 are best satisfied.24
Although all Continental pilots have allegedly been deprived
of the right to vote, not all the pilots have the same interest in
rectifying that deprivation. If the district court had included
all Continental pilots in the class, the class would have included
pilots with interests antagonistic to each other: pilots, like the
named plaintiffs, who want to vote because they lost seniority; and
pilots whose seniority increased as a result of the defendants’
action, and who thus benefitted from the action taken without a
22
See Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 976 (5th Cir. 2000).
23
Defendants do not challenge the LRA claim on this basis.
24
See Fed. R. Civ. P. 23(c)(4) (2000); Lundquist v. Security Pacific
Automotive Fin. Servs. Corp., 993 F.2d 11, 14 (2d Cir. 1993) (noting that “the
court is empowered under Rule 23(c)(4) to carve out an appropriate
class—including the construction of subclasses,” but that the court “is not
obligated to implement Rule 23(c)(4) on its own initiative”).
7
vote. By defining the class to include only those pilots who also
suffered a loss of seniority, the district court ensured that the
class maintained a degree of cohesion, a commonality of interest,
that a broader class may have lacked.
Further, the interests of the members of the class and those
excluded from the class definition are sufficiently distinct to
justify the line drawn. While all pilots can claim a loss of
procedural rights, those not in the class have no other injury.
Drawing the class lines short of persons with no claim for loss of
benefits was not an abuse of discretion.25
Rule 23(a)(1): Numerosity
Defendants argue that both claims fail the numerosity
requirement for the same reason: since only eleven pilots had their
seniority restored, only eleven class members could possibly have
lost work assignments because of their lower seniority. If only
eleven pilots were harmed, defendants reason, the class is not
sufficiently numerous to merit class treatment.
This argument fails on its own terms. Restoring a single
pilot’s seniority could cause many pilots to lose their preferred
routes. If one pilot is forced to accept her second-choice route,
she may in turn displace from that route another, less senior pilot
who in turn must take his second-choice route, and so on. A loss
25
We note that non-members of the class remain free to assert their rights
as they see fit.
8
of preferred routes could thus cascade all the way down the
seniority list.
Moreover, the injury to the class members is not merely loss
of a specific work assignment or an identifiable sum of money; loss
of seniority is itself a harm, as we explained in finding that the
plaintiffs have standing. The district court reasonably concluded
that the class exceeded 1,700 members.26 Defendants make no claim
that this figure is not sufficiently numerous for class treatment.
Rule 23(a)(2): Commonality
“The threshold of ‘commonality’ is not high”27 and is met in
this case for both claims. Each claim describes common issues of
law and fact.
Regarding the RLA claim, all the plaintiffs were harmed by a
single action taken by the Pilots’ Association, the decision to
reinstate the seniority of eleven pilots. The RLA claim alleges
that this action violated the Pilots’ Association’s duty of fair
representation to the plaintiffs as a group. Resolution of any
disputed facts surrounding the action taken by the Pilots’
Association, and any factual and legal questions regarding whether
26
Defendants also claim that since bidding is conducted within distinct
groupings of pilots called “subbases,” only pilots who share a subbase with one
of the eleven pilots whose seniority was restored could have been injured. There
are thirty-one subbases. At best, this reduces the class to hundreds of
plaintiffs, rather than in excess of 1,700. But the loss of seniority affected
more than just bidding, and thus the district court did not clearly err in
finding that the class numbered at least 1,700.
27
Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986).
9
the Pilots’ Association violated its duty of fair representation,
will affect the entire class.28 The RLA claim presents common
questions.29
Regarding the LMRDA claim, whether the defendants were
required to allow the pilots to vote on the seniority change is a
legal question common to all of the class members that depends not
on their individual circumstances, but on the application of the
statute30 to the duties of the Pilots’ Association under its
constitution and the actions of the Pilots’ Association and
Continental Airlines. The factual questions surrounding the
decision of the Pilots’ Association and Continental Airlines are
28
The plaintiffs describe the following common issues for the RLA claim:
(1) whether the Pilots’ Association breached its duty of fair representation by
making the seniority changes arbitrarily; (2) whether the Pilots’ Association
breached its duty of fair representation by making the changes for discriminatory
purposes; (3) whether the Pilots’ Association breached its duty of fair
representation by making the changes in bad faith; and (4) the methodology for
calculating back pay.
29
See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir.
1999). Defendants also argue that common issues do not unite the class, because
some members are pilots who worked during the strike, and others are pilots who
joined Continental after the strike. This argument goes to the merits of
plaintiffs’ allegation that the Pilots’ Association acted in bad faith to punish
pilots who worked during the strike, not to the propriety of certification. We
do not consider the merits of a case when reviewing class certification. See
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). The existence of this
difference between class members does not erase the common issues that do exist.
30
29 U.S.C.A. § 411(a)(1).
10
common issues for the entire class.31 The LMRDA claim presents
common questions.
Rule 23(a)(3) & (4): Typicality and Adequacy
Defendants assert, for both the RLA and LMRDA claims, that the
class representatives are not typical or adequate because they
suffered no injury. Again, the class representatives have suffered
an injury, loss of seniority, that is the same injury suffered by
the rest of the class.
Some class members may have lost work assignments, pay, and
other benefits. But differences in the extent of injury between
class representatives and unnamed class members does not defeat
certification in this case. First, if we accept the defendants’
argument that only eleven class members lost work assignments, the
class representatives are typical of the remaining 1,700 or so
class members whose only injury at this point is loss of seniority.
Second, although some theories about damages may differ, all
31
The plaintiffs describe the following common issues for the LMRDA claim:
(1) whether the Pilots’ Association constitution and by-laws granted the pilots
a right to vote on the seniority change; (2) whether the union interpreted its
constitution in good faith before ordering the changes without a vote; (3)
whether any interpretation of the constitution not to require a vote was patently
unreasonable; (4) whether the pilots were allowed to vote; and (5) the
methodology for calculating back pay.
11
plaintiffs share the same theories of liability.32 The district
court did not abuse its discretion in finding typicality.
Nor did the district court abuse its discretion in finding the
representatives to be adequate. The class representatives’
interests are aligned, not antagonistic, to the unnamed class
members.33 Further, since this is a 23(b)(3) class, dissatisfied
class members have the right to opt out of the class.34
Rule 23(b)(3): Predominance and Superiority
Defendants argue that common issues do not predominate because
damages under both the RLA and LMRDA must be calculated in a highly
individualized manner. They further argue that a class action is
not superior for either claim. Rule 23(b)(3) lists some of the
considerations the predominance and superiority inquiries should
include. They are “(A) the interest of members of the class in
individually controlling . . . separate actions; (B) the extent and
nature of any litigation concerning the controversy already
commenced by or against members of the class; (C) the desirability
or undesirability of concentrating the litigation of the claims in
32
See Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 472 (5th Cir.
1986) (“The ‘typicality’ requirement focuses less on the relative strengths of
the named and unnamed plaintiffs’ cases than on the similarity of the legal and
remedial theories behind their claims.”).
33
See Mullen, 186 F.3d at 625-26. Restoration of seniority would benefit
the entire class; the class representatives do not seek relief at the expense of
unnamed class members.
34
See Fed. R. Civ. P. 23(c)(2); Jenkins, 782 F.2d at 472 n.5.
12
the particular forum; (D) the difficulties likely to be encountered
in the management of a class action.”35
Regarding predominance, defendants argue that the necessity of
individualized inquiry into each plaintiff’s injury to determine
damages means that individual issues predominate over class issues.
Although calculating damages will require some individualized
determinations, it appears that virtually every issue prior to
damages is a common issue. The plaintiffs’ suit boils down to one
basic factual claim: the Pilots’ Association took a single act that
caused every plaintiff to lose seniority. Every aspect of
liability in the case involves this common issue.36 Further, not
all of the relief requires individualized determination.
Injunctive relief undoing the restoration of the eleven pilots’
seniority levels requires no individualized determinations, except
for the recalculation of seniority rankings by the defendants.37
Determining damages may require the district court to
reconsider class treatment of damages, but given the great
significance of common issues in this case, we find no abuse of
35
Fed. R. Civ. P. 23(b)(3). Placing the defendants’ arguments within the
framework these factors provide, we see that defendants focus their attention on
(A) and (D). There is no litigation already commenced in other forums, and the
defendants identify nothing about the particular forum that makes it undesirable.
36
Cf. Mullen, 186 F.3d at 626-27 (affirming certification when most, but
not all, liability issues are common). As noted above, this central claim
breaks down into numerous common issues of fact and law. See notes 28, 31.
37
Another consideration in favor of finding predominance is that if the
defendants prevail on the liability issues, damages will be moot. See Mullen,
186 F.3d at 626.
13
discretion in the district court’s determination that common issues
predominated.38
Regarding superiority, defendants argue that the interests of
class members in individual actions and the unmanageability of the
class means this class fails the superiority requirement. They
argue that (1) substantial potential damages make individual
actions under both claims feasible, (2) the availability of
attorney’s fees under the LMRDA claim makes individual actions
under that claim feasible, and (3) individualized calculation of
damages makes a class action unmanageable.39
The damages that most members of the class would be entitled
to seek are small. According to the plaintiffs, some class members
may be entitled to damages of about $29,000 in back pay for lost
work assignments,40 but for the vast majority of plaintiffs, their
only damages stem from loss of seniority itself and not lost work
assignments. For them, damages will be nominal and their primary
relief will be injunctive. A large group of plaintiffs, each with
small damages, seeking injunctive relief that benefits the group as
a whole, is the prototypical class.
38
“In order to ‘predominate,’ common issues must constitute a significant
part of the individual cases.” Mullen, 186 F.3d at 626 (quoting Jenkins, 782
F.2d at 472).
39
They also argue that the class device cannot be superior because the
named plaintiffs have suffered no injury. This final iteration of the standing
argument fails because, as we have explained above, the plaintiffs have suffered
an injury, and the plaintiffs share that injury with the class.
40
Defendants dispute whether any members of the class would be entitled
to back pay.
14
Likewise, regarding the LMRDA claim, attorney’s fees do not
alter the relatively low damages most plaintiffs would receive nor
the significance of injunctive relief to the entire class.
Defendants essentially argue that the potential for significant
damages and the presence of attorney’s fees under the LMRDA makes
individual actions feasible. But the feasibility of individual
actions does not undercut the conclusion that the class device is
superior. In order to demonstrate that the district court’s
finding of superiority was an abuse of discretion, defendants must
not merely show that individual actions are feasible; they must
show that individual class members have an interest sufficient to
make individual actions desirable.
Regarding the manageability of the class action, there is a
possibility that some damages calculations would be burdensome.
But the economies of class treatment of the numerous common issues
weigh in favor of class treatment. We cannot find that the
district court abused its discretion in finding certification to be
superior for both claims.
IV
The district court did not abuse its discretion in certifying
the class with respect to the RLA claim or the LMRDA claim. We
AFFIRM the district court’s certification of the class.
15