UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) ISAAC HARRIS et al., ) ) Plaintiffs, ) ) v. ) Case No. 17-cv-1371 (APM) ) MEDICAL TRANSPORTATION ) MANAGEMENT, INC. et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER

Defendant Medical Transportation Management, Inc. (“MTM”) seeks interlocutory review

of this court’s refusal to decertify a collective action under the Fair Labor Standards Act (“FLSA”).

MTM also requests a stay of discovery pending a decision from the D.C. Circuit on whether to

review a separate but related decision by this court to certify an issue class. The D.C. Circuit has

deferred its decision pending a ruling by this court on MTM’s motion for interlocutory review.

For the reasons discussed below, the court finds that an immediate appeal of the FLSA

decertification denial would not “conserve judicial resources and spare the parties from possibly

needless expense if it should turn out that this Court’s ruling[] [is] reversed.” APCC Servs., Inc.

v. Sprint Commc’ns Co.,

(D.D.C. 2003). Accordingly, MTM’s motion to

certify is denied, and so too is its motion for a stay.

I.

MTM is a private company that contracts with the District of Columbia to manage and

administer non-emergency medical transportation services for the District’s Medicaid recipients.

MTM does not provide the transportation services itself; rather, it contracts with dozens of transportation service providers (“TSPs”) that, in turn, employ drivers who take Medicaid

recipients to and from medical appointments. Plaintiffs Isaac Harris, Darnell Frye, and Leo

Franklin have worked at various times as drivers for different TSPs contracting with MTM. They

filed this action four years ago, individually and on behalf of all others similarly situated

(collectively, “Plaintiffs”), against MTM to recover unpaid wages under (1) the FLSA, 29 U.S.C

§ 201 et seq.; (2) the D.C. Minimum Wage Act,

et seq.; (3) the D.C. Living

Wage Act,

et seq.; and (4) the D.C. Wage Payment and Collection Law,

. Plaintiffs allege that because MTM is both their joint employer and the

general contractor of the TSPs, MTM is liable for their unpaid wages under federal and District of

Columbia wage laws.

In August 2021, this court issued an order (1) denying MTM’s motion to decertify the

FLSA collective action this court conditionally certified in July 2018 and (2) granting Plaintiffs’

motion to certify an issue class under Federal Rule of Civil Procedure 23(c)(4). Harris v. Med.

Transp. Mgmt., Inc., No. 17-cv-1371 (APM),

, at *1 (D.D.C. Aug. 6, 2021).

As relevant here, the court concluded that (1) Plaintiffs were “similarly situated” for purposes of

the FLSA on the question whether MTM qualifies as their joint employer; (2) the case could

proceed as a collective action on the joint-employer question; and (3) the question whether MTM

is a joint employer or a general contractor would “materially advance the litigation” and so could

proceed on an issue-class basis under Rule 23(c)(4).

. 1

1 The FLSA makes a business liable for unpaid wages if it is deemed a joint employer. See Harris v. Med. Transp. Mgmt., Inc.,

(D.D.C. 2018). District of Columbia wage laws similarly extend liability based on joint-employer status, see

, but they also impose liability if the business is deemed a general contractor of a sub-contractor,

(c). The question of MTM’s status as a general contractor therefore is relevant only to the certified issue class and not the collective action under the FLSA. 2 II.

Under

(b), certifying an order for interlocutory appeal is appropriate when

“(1) the order involves a controlling question of law; (2) a substantial ground for difference of

opinion concerning the ruling exists; and (3) an immediate appeal would materially advance the

litigation.” APCC Servs.,

. The party seeking interlocutory review “bears

the burden of showing that exceptional circumstances justify a departure from the basic policy of

postponing appellate review until after the entry of final judgment.” Virtual Def. & Dev. Int’l, Inc.

v. Republic of Moldova,

(D.D.C. 2001) (internal quotation marks omitted).

Given the “strong congressional policy against piecemeal reviews, and against obstructing or

impeding an ongoing judicial proceeding by interlocutory appeals,” certification is only

appropriate in the court’s discretion and upon satisfaction of all three of the elements of § 1292(b).

Jud.” Jud. Watch, Inc. v. Nat’l Energy Pol’y Dev. Grp.,

(D.D.C. 2002)

(quoting United States v. Nixon,

(1974)).

Here, none of the four ostensibly “controlling question[s] of law,” id. at 19, identified by

MTM satisfies all three elements.

A.

The first question MTM identifies as “controlling” is “[w]hether the test applied in the

Court’s [August 2021] Order constitutes the proper standard for determining whether a group of

plaintiffs is ‘similarly situated’ for purposes of the FLSA collective action provision.” Def.’s Mot.

to Amend and Certify Order of Aug. 6, 2021 for Interlocutory Appeal, ECF No. 189, Mem. of Law

in Supp. of Def.’s Mot., ECF No. 189-1 [hereinafter Def.’s § 1292(b) Mem.], at 2. In its August

2021 opinion, this court noted that the D.C. Circuit has “not yet spoken” on what makes persons

“similarly situated” for purposes of an FLSA collective action and so considered the three

3 approaches taken by federal courts: (1) the so-called “ad hoc” approach followed by one Circuit

court and many district courts, (2) “the minority approach” that places the collective-action

question under the lens of Rule 23’s class-action requirements, and (3) the approach taken by the

Ninth Circuit in Campbell v. City of Los Angeles,

(9th Cir. 2018). See Harris,

, at *3. The court ultimately settled on the Campbell approach because it, unlike

the other two contenders, does not “import[], through a back door, . . . the [Federal Rule of Civil

Procedure] 23(b)(3) requirements” or “focus[] on points of potential factual or legal dissimilarity

between party plaintiffs when the focus should be, in light of the collective action’s reason for

being within the FLSA, whether the party plaintiffs are alike with regard to some material aspect

of their litigation.”

(alteration and internal quotation marks omitted).

“[T]he differing results reached in the various decisions cited in the [August 2021] Order,”

Def.’s § 1292(b) Mem. at 5, arguably satisfy the interlocutory-review requirement that there must

be a “substantial ground for difference of opinion” as to what “similarly situated” means under the

FLSA. APCC Servs.,

. But MTM must also demonstrate that this question

is “controlling.”

It is not. Merely showing that the question is unsettled is not enough. See

Wash. Tennis & Educ. Found., Inc. v. Clark Nexsen, Inc.,

(D.D.C. 2018)

(holding that the mere fact an issue is “one of first impression” does not require or justify

interlocutory review). Rather, MTM must show that the question “would require reversal if

decided incorrectly” or “could materially affect the course of litigation with resulting savings of

the court’s or the parties’ resources.” APCC Servs., 297 F. Supp. 2d at 95–96 (internal quotation

marks omitted). MTM, however, nowhere explains how the selection of the ad hoc or minority

approach, as opposed to the Campbell approach, would make any difference here, let alone

4 “materially affect the course of litigation.” See Def.’s § 1292(b) Mem. at 5–6. This first

“controlling question of law” thus does not justify the exceptional step of interlocutory review.

B.

MTM offers three additional “controlling questions of law that warrant interlocutory

review.” 2 These essentially boil down to one overarching question: Can the question of joint-

employer status be the basis for a collective action under the FLSA? In its August 2021 opinion,

the court concluded that it could. The court reasoned that “MTM’s role in devising [each driver’s]

terms of employment is . . . likely to be defined by policies and practices that are broadly

applicable to all TSPs,” and that “MTM is likely to be a joint employer for all drivers or for none

at all” based on common evidence. Harris,

, at *5. The court moreover

determined that proceeding collectively was “potentially dispositive of the case” because “if

Plaintiffs cannot carry their burden to show that MTM is a joint employer” the case ends.

. MTM, by contrast, has consistently argued that “there must be evidence of a common FLSA-

violating policy or practice to satisfy the similarly situated standard,” see

and it now contends

that the question of joint-employer status as the basis for a collective action warrants interlocutory

review. Def.’s § 1292(b) Mem. at 6–10.

The court disagrees. Even if this is a “controlling question of law,” MTM has failed to

demonstrate that it satisfies the remaining elements justifying interlocutory review. See APCC

Servs.,

.

2 Those questions are (1) “Whether a group of plaintiffs can be ‘similarly situated’ for purposes of an FLSA collective action if they were not subject to any common FLSA-violating policy or practice”; (2) “Whether the existence of a dispute as to whether the members of a collective were jointly employed by a defendant is sufficient to render those individuals ‘similarly situated’ for purposes of an FLSA collective action”; and (3) “Whether an FLSA collective action can be maintained as to particular issues rather than as to an FLSA claim as a whole.” Def.’s § 1292(b) Mem. at 2–3. 5 1.

First, the court is not convinced that there is “substantial ground for difference of opinion”

as to this question.

(b). MTM attempts to establish “substantial ground” by

pointing to three out-of-circuit district court cases—two of which the court cited in its August 2021

opinion—specifically finding the question of joint-employment status insufficient to support a

collective action. Def.’s § 1292(b) Mem. at 6–8 (first citing Edmonds v. Amazon.com, Inc., No.

C19-1613JLR,

(W.D. Wash. Oct. 9, 2020); then citing Gibbs v. MLK Express

Servs., LLC, No. 18-cv-434-FtM-38MRM,

(M.D. Fla. June 27, 2019); and then

citing Arnold v. DirectTV, LLC, No. 10-cv-352-JAR,

(E.D. Mo. Mar. 31,

2017)); Harris,

, at *7. 3 MTM also emphasizes that “Plaintiffs have identified

no case that has ever held that an FLSA collective action may be maintained where . . . the record

shows that there is no common” violative policy. Def.’s Reply in Supp. of Def.’s Mot., ECF No.

196, at 4.

MTM is correct that other courts have held that a dispute over joint-employer status does

not make plaintiffs “similarly situated” for purposes of the FLSA. Section 1292(b)’s substantial-

ground analysis is not, however, an exercise in “keep[ing] score.” Molock v. Whole Foods Mkt.

Grp., Inc.,

(D.D.C. 2018). The court is required to analyze the reasoning of

the various decisions and evaluate the “strength of the arguments in opposition” in assessing

whether there is substantial ground for dispute. APCC Servs.,

. For the

3 MTM also cites Zavala v. Wal-Mart Stores, Inc.,

(3d Cir. 2012), but that opinion does not even use the term “joint employer,” nor does the underlying district court opinion in that case, see Zavala v. Wal-Mart Stores, Inc., No. 03-5309,

(D.N.J. Apr. 7, 2011). Def.’s § 1292(b) Mem. at 8. Another case cited by MTM is unpersuasive for a different reason: Hinds v. FedEx Ground Package Sys., Inc., No. 18-cv-01431-JSW,

(N.D. Cal. Aug. 18, 2021), deals with class certification under Federal Rule of Civil Procedure 23(b)(3) and (c)(4), not collective-action certification under the FLSA. 6 reasons already explained in its August 2021 opinion, the court is skeptical of the rationale of cases

like Edmonds and Gibbs, which rejected certification of a collective action on the joint-employer

issue. See Harris,

, at *5–7. That approach runs counter to the expansive aims

of the FLSA, which defines the term “employer” broadly to prevent employers from shielding

themselves from liability by operating through intermediaries. See Harris v. Med. Transp. Mgmt.,

Inc.,

(D.D.C. 2018) (explaining that the FLSA “intentionally drew the

definition of ‘employer’ under the FLSA to have a broad sweep” to impose liability on “businesses

that used middlemen to” engage in unlawful employment practices); see also Hoffmann–La Roche

Inc. v. Sperling,

(1989) (discussing the purpose of the FLSA of giving “plaintiffs

the advantage of lower individual costs to vindicate rights by the pooling of resources,” and

benefitting the judicial system “by efficient resolution in one proceeding of common issues of law

and fact arising from the same alleged . . . activity”). Nor do those cases offer any explanation for

why Congress would have authorized collective actions only for questions of ultimate liability

(i.e., whether a policy or practices violates the FLSA), and not threshold questions of liability (i.e.,

whether a defendant is a joint employer).

MTM also argues that courts have certified FLSA collective actions only where a common

FLSA-violating policy or practice is present, demonstrating that “the existence of . . . a common

policy or practice has . . . been recognized as a necessary prerequisite to a collective action.”

Def.’s § 1292(b) Mem. at 6 (emphasis added). But MTM makes an inferential leap that no

appellate court has made. As the court pointed out in its August 2021 opinion, these cases show

at most that “a common policy or practice might be sufficient to show party plaintiffs are similarly

situated,” not that a common policy or practice is “necessary.” Harris,

, at *6.

In Campbell, for example, as in other similar cases, “the lack of a common FLSA-violating policy

7 was dispositive because it was the only justification for collective action offered by the plaintiffs.”

In other words, in those cases, the absence of a common violative policy or practice meant that

there was no other ground for a collective action. But MTM cites no circuit authority for the

proposition that only a common violative policy or practice can support a collective action. Thus,

MTM has not established substantial ground for dispute.

In sum, MTM’s arguments do not extend beyond mere “continued disagreement with the

court’s decision.” Wash. Tennis & Educ. Found.,

(internal quotation marks

omitted); see also In re Vitamins Antitrust Litig., No. 99-197 (TFH),

, at *3

(D.D.C. Jan. 27, 2000) (declining to certify for interlocutory appeal where “Petitioners rely on

their disagreement with the Court’s [previous] ruling as well as the acknowledged lack of

precedent on this issue to demonstrate a substantial ground for difference of opinion” (internal

quotation marks omitted)). The Gibbs and Edmonds courts may have concluded on their facts

that a collective action could not proceed without a common violative policy or practice, but the

court’s assessment of the evidence and claims in this case compels a different conclusion. The

court maintains its view that Plaintiffs have adequately demonstrated they are similarly situated as

to the material question whether MTM is a joint employer, see Harris,

, at *7,

and MTM has not made a sufficient showing of substantial ground for disagreement as to that

holding.

2.

MTM also has not demonstrated that interlocutory review will materially advance the

disposition of the litigation. To satisfy that requirement, MTM must show that interlocutory

appellate review “would generate significant savings in resources for both the courts and the

litigant[].” Educ. Assistance Found.,

, at *3 (quoting McKenzie v. Kennickell,

8 No. 73-0974,

, at *2 (D.D.C. Oct. 27, 1986)). MTM asserts that “[i]f the Circuit

Court of Appeals grants review and holds that maintaining certification of a collective action is

not proper in this case, this litigation will revert to an action involving only three plaintiffs,” which

would in turn “dramatically impact both the scope and length of the future proceedings in this

action.” Def.’s § 1292(b) Mem. at 10. The alternative, MTM claims, is a “wide-ranging

procedure” of conducting “trial individually or in small groups of plaintiffs” on remaining

questions of liability and damages, which would “require at least 53 different trials if not more”—

consuming “more time and resources than the three-plaintiff case that would remain in the event

an interlocutory appeal resulted in decertification now.” Id.

But MTM has not explained how, exactly, the burden on the parties and the court would

change if the Circuit were to undo the certification of the collective. As this court has previously

noted, whether this case proceeds now as a collective or three-plaintiff action, MTM and Plaintiffs

likely will use evidence of different TSPs’ policies—already generated as part of class and

collective discovery—to demonstrate that MTM is not a joint employer. Harris,

, at *5. Plaintiffs represented in their opposition to MTM’s motion to stay proceedings

that they “do not intend to seek further discovery before moving for summary judgment” on the

joint-employer question. Pls.’ Opp’n to Def.’s Mot. to Stay Proceedings, ECF No. 193, at 4.

MTM said otherwise. See Reply in Supp. of Def.’s Mot. to Stay Proceedings During Pendency of

Rule 23(f) Appeal, ECF No. 194, at 5. The court gave MTM the opportunity to describe what

discovery it hopes to take on the joint-employer issue, and how such discovery would differ if the

case were to proceed as a collective or a three-plaintiff case, and its response was insubstantial:

MTM did not articulate a difference between the two. See Hr’g Tr. (draft), Nov. 10, 2021. It does

not naturally follow that fewer plaintiffs will mean a narrower scope of discovery. The court can

9 imagine a scenario wherein MTM wishes to take discovery from TSPs other than those that

employed the three Plaintiffs to show that it was not a joint employer to any driver. It is therefore

not clear to the court how a decertified collective would spare the parties and the court significant

resources in discovery with respect to the joint-employer question.

What’s more, it is possible that decertification would not lessen the burden on the court

and parties at all. Plaintiffs have indicated that “if MTM were to prevail in an interlocutory appeal

and secure decertification of the collective, the result would be individualized trials for both the

three named plaintiffs and for up to the more than one-hundred fifty party plaintiffs in the FLSA

collective action.” Pls.’ Opp’n to Def.’s Mot. to Amend and Certify Order of Aug. 6, 2021 for

Interlocutory Appeal Pursuant to

(b), ECF No. 195 [hereinafter Pls.’

§ 1292(b) Opp’n], at 8. If that were to occur, the court likely would consolidate the cases for

proceedings on the joint-employer question, leaving the court (and the parties) in no different

position, practically speaking, than if the case were to proceed collectively now. See Fed. R. Civ.

P. 42. Either way, whether as a collective action or as a consolidation of individual actions, the

joint-employer question likely will not be tested and resolved only for a small subset of drivers.

Certification for interlocutory review therefore would not “hasten or at least simplify the litigation

in some material way, such as by significantly narrowing the issues, conserving judicial resources,

or saving the parties from needless expense.” Molock,

; see also United States

ex rel. Pogue v. Diabetes Treatment Ctrs. of Am.,

(D.D.C. 2008) (denying

certification for interlocutory review where “regardless of the outcome of interlocutory appeal,

trial of the case would still have to occur to reach the litigation’s ‘ultimate termination’”).

10 III.

Defendants also have moved to stay trial-court proceedings pending the outcome of the

Rule 23(f) motion before the D.C. Circuit. An appeal under Rule 23(f) “does not stay proceedings

in the district court unless the district judge or the court of appeals so orders.” Fed. R. Civ. P.

23(f). Such an order is thus not automatic but discretionary and “requires a demonstration that the

probability of error in the class certification decision is high enough that the costs of pressing ahead

in the district court exceed the costs of waiting.” DL v. District of Columbia,

(D.D.C. 2014) (internal quotation marks omitted). 4

Under the circumstances, the court is not persuaded that a stay is required in the short term.

By taking three months to consider the motions before the court, the court already effectively

stayed discovery for that period. Additionally, MTM is free to come back to the court to seek a

stay if the D.C. Circuit decides to grant the Rule 23(f) motion. A stay until such decision is made

is not warranted.

This case has been pending since 2017 and has reached only the certification stage. It will

continue to move forward unless the D.C. Circuit signals otherwise.

IV.

For the foregoing reasons, MTM’s Motion to Amend and Certify, ECF No. 189, and

Motion to Stay Proceedings During Pendency of Rule 23(f) Appeal, ECF No. 190, are denied. The

parties shall (1) file a Joint Status Report by December 6, 2021, that proposes a schedule for further

4 Both parties frame their arguments in terms of the four factors used in this District to consider motions for preliminary injunctive relief. See In re Lorazepam & Clorazepate Antitrust Litig.,

(D.D.C. 2002). However, as the parties acknowledge, the D.C. Circuit has not articulated a standard for determining whether a stay is appropriate pending a Rule 23(f) appeal, see DL,

, and so the court need not evaluate the four-factor In re Lorazepam analysis as it applies to this case. 11 proceedings and (2) appear for a status conference on December 10, 2021, at 3:00 p.m. via

videoconference to discuss the proposed schedule.

Dated: November 22, 2021 Amit P. Mehta United States District Court Judge

12