[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 31, 2007
No. 06-15876
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-01473-CV-CC-1
ESCOLASTICO DE LEON-GRANADOS,
RENE VILLATORO-DE LEON, et al.,
Plaintiffs-Appellees,
versus
ELLER AND SONS TREES, INC.,
JERRY ELLER,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 31, 2007)
Before DUBINA, BLACK, Circuit Judges and RESTANI,* Judge.
BLACK, Circuit Judge:
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
This is an interlocutory appeal from the district court’s grant of class
certification. The Appellees, migrant workers, claim Eller & Sons Trees, Inc.
(Eller & Sons) and Jerry Eller (collectively, the Appellants) violated their rights
under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C.
§§1801-1872 (AWPA) and the Fair Labor Standards Act, 29 U.S.C. §§201-219
(FLSA), during their employment at Eller & Sons at various times from June 1999
through June 2005. On appeal, the Appellants contend the district court abused its
discretion in certifying, under Fed. R. Civ. P. 23(b)(3), the Appellees’ proposed
class consisting of over 1,500 migrant workers admitted to the United States under
the H-2B temporary foreign worker visa program to work at Eller & Sons, see 8
U.S.C. § 1101(a)(15)(H)(ii)(b), and sub-class consisting of those workers who
pledged collateral with Eller & Sons’ agents in order to obtain employment. We
hold the district court did not abuse its discretion in certifying the Rule 23(b)(3)
class and sub-class. Accordingly, we affirm the district court’s certification order
and remand for further proceedings.
I. BACKGROUND
Eller & Sons is a small business in Franklin, Georgia, that provides
reforestation and forestry services. Most of Eller & Sons’ employees plant trees in
the southern United States during December, January, and February. Employees
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are recruited from Guatemala, Honduras, and Mexico and hired under the H2-B
non-immigrant visa program, which permits employers to hire foreign workers to
come to the United States and perform temporary non-agricultural services on a
one-time, seasonal, peakload or intermittent basis when qualified U.S. workers are
not available. 8 U.S.C. § 1101(a)(15)(H)(ii)(b). Employers of H-2B guestworkers
are required to pay them an hourly prevailing wage rate, which is determined by
the State Workforce Agency (SWA) having jurisdiction over the proposed area of
intended employment. The workers allege the average wage rate at which Eller &
Sons was certified to pay the H-2B workers was $8.32/hour, well above the
$5.15/hour federal minimum wage rate.
The appellee-migrant workers were employed by Eller & Sons at various
times from June 1999 through June 2005. On June 6, 2005, the workers filed suit
on behalf of themselves and all others similarly situated against Eller & Sons and
Jerry Eller, asserting claims under the AWPA and FLSA. They filed an Amended
Complaint (Complaint) on February 7, 2006. In Count I of the Complaint, the
workers alleged Eller & Sons violated the AWPA by (1) failing to reimburse
travel, recruitment and visa processing expenses, (2) maintaining and providing
false and inaccurate records of hours worked, (3) failing to pay them the
applicable prevailing wage rate and overtime wages, (4) failing to provide them
3
with promised full-time employment, (5) knowingly providing them with false and
misleading information regarding the terms and existence of employment, and
(6) requiring a sub-class of workers to post collateral in the form of the deeds to
their property to obtain employment. In Count II of their Complaint, the workers
alleged Eller & Sons violated the FLSA by failing to pay them the applicable
minimum wage of $5.15/hour and overtime wages for hours worked.
The workers initially moved for class certification of their AWPA claims on
June 29, 2005. On July 27, 2005, they filed a motion for preliminary certification
of a collective action for their claims under the FLSA. On October 18, 2005, the
district court issued an order denying the motion for class certification of the
AWPA claims without prejudice and instructing the parties to conduct additional
discovery on issues pertaining to class certification. In the same order, the court
granted preliminary certification of a collective action under 29 U.S.C. § 216(b)
for the FLSA claims. According to the Appellants, opt-in notices for the FLSA
collective action were sent to approximately 1,800 current and former employees
of Eller & Sons. Only 30 of the potential class members, in addition to the 5
named plaintiffs, completed and returned their opt-in forms before the time period
closed.
4
On January 31, 2006, the workers filed a renewed motion for class
certification under Fed. R. Civ P. 23(b)(3) for the AWPA claims, seeking to
represent a class consisting of “all those individuals admitted as H-2B temporary
foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed
in [Eller & Sons’] forestry operations from June 1999 until the present.” They
also proposed a sub-class of “all those individuals admitted as H-2B temporary
foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed
in [Eller & Sons’] forestry operations from January 1, 2003 until the present, who
pledged collateral with [Eller & Sons’] agents in order to obtain employment with
the [Eller & Sons].”
On September 28, 2006, the district court granted the motion to certify
under Fed. R. Civ P. 23(b)(3). The court rejected the Appellants’ argument that a
29 U.S.C. § 216(b) collective action would be a superior method of adjudicating
the workers’ AWPA claims, finding that a § 216(b) collective action would not
adequately address the workers’ AWPA claims. The district court also found the
workers satisfied their burden to establish the existence of the Rule 23
5
prerequisites. The Appellants filed a timely appeal, asking us to determine
whether the district court abused its discretion in granting class certification.1
II. STANDARD OF REVIEW
“Questions concerning class certification are left to the sound discretion of
the district court.” Cooper v. Southern Co., 390 F.3d 695, 711 (11th Cir. 2004).
Accordingly, we review a district court’s class certification order for abuse of
discretion. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337
(11th Cir. 2006).
III. DISCUSSION
On appeal, the Appellants argue the district court abused its discretion in
granting class certification. The Appellants claim this action is based on the
FLSA and must therefore be adjudicated as an opt-in collective action under 29
U.S.C. § 216(b) instead of an opt-out Rule 23(b)(3) class action. Alternatively, the
1
The same day it issued the class certification order, the district court issued a discovery
order in which it held that the applicable statute of limitations for the AWPA claims is six years.
The Appellants also argue on appeal the district court erred in establishing this statute of
limitations. This issue is not properly before us, however. With limited exceptions, the federal
courts of appeals have jurisdiction to hear appeals only “from . . . final decisions of the district
courts of the United States.” 28 U.S.C. § 1291 (emphasis added). Although Fed. R. Civ. P. 23(f)
permits us to review “an order of a district court granting or denying class action certification,”
the district court’s finding on the applicable statute of limitations was made in a separate
discovery order. The jurisdiction granted by Rule 23(f) does not extend to this separate order.
Further, the Appellants have not argued any other exception to our limited review of
interlocutory orders. Thus, we do not have jurisdiction to consider the statute of limitations
issue.
6
Appellants argue that even if a Rule 23 class action is not precluded by 29
U.S.C. § 216(b), the district court abused its discretion in certifying the class
because the workers failed to prove the necessary prerequisites under Rule 23. We
address the Appellants’ arguments in Sections A. and B., respectively.
A. Impact of 29 U.S.C. § 216(b)
The Appellants maintain that the bulk of the purported AWPA claims are
derived from alleged FLSA violations and must therefore be brought in a
collective action. Section 216(b) of the FLSA provides that “[n]o employee shall
be a party plaintiff to any action [for unpaid wages] 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.”2 Thus, in an FLSA action, a party-plaintiff must opt into an
action, whereas in a Rule 23(b)(3) class action, all qualifying class members
become party-plaintiffs unless they opt out of the action. See Rule 23(c)(2)(B)
2
See also 29 C.F.R. § 790.20. That regulation provides:
Section 16(b) of the Fair Labor Standards Act, as amended by section 5 of the
Portal Act, no longer permits an employee or employees to designate an agent or
representative (other than a member of the affected group) to maintain, an action
for and in behalf of all employees similarly situated. Collective actions brought by
an employee or employees (a real party in interest) for and in behalf of himself or
themselves and other employees similarly situated may still be brought in
accordance with the provisions of section 16(b). With respect to these actions, the
amendment provides that no employee shall be a party plaintiff 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.
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(explaining that “the court will exclude from the class any member who requests
exclusion”). The Appellants contend this distinction is crucial because only 35 of
1,800 potential FLSA collective action plaintiffs opted into the action. The
Appellants claim that if we allow the AWPA claims to proceed as a Rule 23(b)(3)
class action, the class could potentially consist of 6,000 plus workers.3
We must first examine whether the workers’ AWPA claims are truly FLSA
claims in disguise, as the Appellants allege. The FLSA creates a private right of
action for aggrieved employees to recover unpaid minimum wages and unpaid
overtime wages. 29 U.S.C. § 216(b). A review of Count I of the Complaint shows
that the workers asserted six AWPA claims, of which only two seek unpaid wages.
Those claims assert that the Appellants violated the AWPA by (1) failing to pay
them the proper prevailing wage rate and overtime wages for all work performed
and (2) failing to reimburse them for expenses they incurred which were primarily
for Eller & Sons’ benefit, including travel and visa processing expenses. The
workers separately pled FLSA claims under Count II of the Complaint. Those
claims assert that the Appellants violated the FLSA by failing to pay them the
3
It is unclear how the Appellants came up with a total of 6,000 potential class members.
The Complaint alleges the class is believed to include over 1,500 individuals.
8
applicable minimum wage rate of $5.15/hour and overtimes wages for all hours
worked.
Although both the AWPA claims and FLSA claims seek unpaid wages, they
are not identical. The workers are entitled to recover the prevailing wage rate
under the AWPA and only the minimum wage rate under the FLSA. Thus, the
workers’ AWPA wage claims are not FLSA claims in disguise and may properly
be brought in a Rule 23(b)(3) class action. Likewise, the workers’ AWPA claims
that do not seek unpaid wages–including claims based on the failure to make, keep
and provide accurate work records, the failure to provide workers with promised
full-time employment, knowingly providing them with false and misleading
information regarding the terms and existence of employment, and wrongfully
requiring them to post deeds to their land as collateral to obtain
employment—cannot be asserted under the FLSA, and are also appropriate for an
AWPA class action under Rule 23.
The statutory text of the AWPA supports our conclusion that the workers
are entitled to bring their AWPA claims as a Rule 23 class action. Its private right
of action provision provides that “if [a] complaint is certified as a class action, the
court shall award no more than the lesser of up to $500 per plaintiff per violation,
or up to $ 500,000 or other equitable relief.” 29 U.S.C. § 1854(c)(1)(B). This
9
contemplates that an action based on violations of the AWPA may be certified as a
class action. Moreover, where Congress intended an external statute to provide
the exclusive remedy for conduct that violates the AWPA, it expressly said so and
limited the AWPA accordingly. For example, section 1854(d) provides that
“where a State workers’ compensation law is applicable and coverage is provided
for a migrant or seasonal agricultural worker, the workers’ compensation benefits
shall be the exclusive remedy for loss of such worker under this Chapter in the
case of bodily injury or death in accordance with such State’s workers’
compensation law.” 29 U.S.C. § 1854(d). If Congress intended § 216(b) to be the
exclusive remedy for violations of the AWPA’s wage payment provisions, it
would have also said so. Accordingly, the district court did not err in finding the
AWPA claims cognizable for class action treatment.
B. Rule 23 Class Certification
The Appellants argue that even if a Rule 23 action is not precluded by 29
U.S.C. § 216(b), the district court abused its discretion in granting class
certification because the Rule 23 requirements were not met. A party seeking to
maintain a class action bears the burden of demonstrating that class certification is
proper. Rutstein v. Avis Rent-A-Car Sys., 211 F.3d 1228, 1233 (11th Cir. 2000).
10
Here, the migrant workers sought to be certified as a Rule 23(b)(3) class action.
To be certified under Rule 23(b)(3), a party must first show the following:
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a); see also Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346
(11th Cir. 2001). “These four requirements commonly are referred to as the
prerequisites of numerosity, commonality, typicality, and adequacy of
representation, and they are designed to limit class claims to those fairly
encompassed by the named plaintiffs’ individual claims.” Piazza, 273 F.3d at
1346 (internal quotations omitted). Additionally, the party must show that
“questions of law or fact common to the members of the class predominate over
any questions affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy.” Fed. R. Civ. P. 23(b)(3); see also Rutstein, 211 F.3d at 1233. In
making these determinations, a court is to consider the interest of class members in
individually controlling separate actions, the extent and nature of litigation
concerning the controversy already commenced, the desirability of maintaining the
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litigation in the particular forum, and the difficulties to be encountered in the
managing the class action. Fed. R. Civ. P. 23(b)(3).
The Appellants argue the district court erred in granting class certification
because (1) the Rule 23(a) prerequisites of numerosity and adequacy of
representation did not exist, and (2) a class action is not the superior method for
adjudication of the controversy. As a preliminary matter, we note that the
Appellants did not argue before the district court that numerosity was lacking.
The Appellants have, therefore, waived that argument. See, e.g., Resolution Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir. 1995). The Appellants did,
however, challenge the adequacy of representation before the district court, and
we therefore address that argument.
The Appellants argue the class representatives are not suitable because they
invoked the Fifth Amendment during their depositions when asked if they worked
for other employers in the United States. The Appellants claim the negative
inferences that can be drawn from the invocation of the Fifth Amendment make
the named plaintiffs unsuitable class representatives. In its order granting
certification, the district court acknowledged this issue, but concluded it would
revisit the issue after its relevance was resolved. The court committed to
continually examine the adequacy of representation of the class representatives.
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Keeping in mind that “questions concerning class certification are left to the sound
discretion of the district court,” the district court’s commitment convinces us that
the district court will re-examine the issue throughout the proceedings and will
assure class representation is adequate. Cooper, 390 F.3d at 711. Accordingly, at
this stage in the proceedings, we conclude the court did not abuse its discretion in
finding adequacy of representation.
Lastly, the Appellants argue a class action is not the superior method of
adjudicating the workers’ AWPA claims because a highly individualized
assessment of the facts will be necessary to determine the amount of hours each
employee worked compared to the amount recorded. We recognize this is a valid
concern, but nonetheless conclude the district court did not abuse its discretion in
granting class certification. We note that under the AWPA, aggrieved workers are
entitled to recover either actual damages or statutory damages of up to $500 per
plaintiff. 29 U.S.C. § 1854(c). While it is not clear from the complaint whether
the workers seek actual or statutory damages, it is within the district court’s
discretion to award statutory damages where proof of actual damages is scarce.
See id. The award of statutory damages would eliminate the need to determine
individualized damages based on actual hours worked.
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IV. CONCLUSION
The district court did not abuse its discretion in certifying a Rule 23(b)(3)
class to adjudicate the workers’ AWPA claims. The Appellants failed to prove the
AWPA claims were required to be brought as an FLSA collective action.
Moreover, given the district court’s commitment to continually monitor the
appropriateness of a class action, the district court did not abuse its discretion in
finding that the Rule 23 prerequisites were met. Accordingly, we affirm the
district court’s certification order.
AFFIRMED.
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