Rule 23(f) Limits and No Pendent Review of FLSA Collective Certification Absent “Inextricably Intertwined” Issues

Case: Hamm v. Ochsner-Acadia (5th Cir. Aug. 19, 2026)
Court: United States Court of Appeals for the Fifth Circuit
Posture: Interlocutory appeal under Rule 23(f) from class-certification orders; attempted piggyback review of FLSA collective-certification orders

1. Introduction

This appeal arises from wage-and-hour and related state-law claims brought by support staff at a Louisiana psychiatric hospital operated by Acadia-affiliated entities. Plaintiffs alleged that, although they were given nominal meal breaks, Acadia’s policies and the staff’s professional duties effectively kept them “on call” during those breaks without pay.

Plaintiffs pursued (1) an FLSA claim via a collective action, and (2) Louisiana-law claims for unjust enrichment and conversion via a Rule 23(b)(3) class action. The district court certified both. Acadia sought interlocutory review under Rule 23(f), and also asked the Fifth Circuit to use pendent appellate jurisdiction to review the FLSA collective-certification orders alongside the Rule 23 class-certification orders.

The key issues were: (a) the scope of appellate jurisdiction in a Rule 23(f) appeal, including whether pendent appellate jurisdiction can reach FLSA collective certification; and (b) whether the Rule 23(b)(3) predominance, superiority, typicality, and adequacy requirements were met for the state-law tort class.

2. Summary of the Opinion

  • Jurisdiction: The Fifth Circuit dismissed Acadia’s attempt to appeal the FLSA collective-certification orders, holding Rule 23(f) authorizes review only of Rule 23 class certification and the collective-certification orders were not properly reviewable under pendent appellate jurisdiction.
  • Class Certification: The Fifth Circuit affirmed certification of a Rule 23(b)(3) class for unjust enrichment and conversion, finding no abuse of discretion as to predominance, superiority, typicality, or adequacy.
  • Remand: The case was remanded for further proceedings; the court expressly did not decide whether the “on-call during meal breaks” theory ultimately establishes unjust enrichment or conversion on the merits.

3. Analysis

A. Precedents Cited (and How They Shaped the Decision)

  • Regents of Univ. of Cal. v. Credit Suisse First Bost. ( USA), Inc., 482 F.3d 372 (5th Cir. 2007): The court used this as the anchor for Rule 23(f)’s limited scope—“the sole order that may be appealed is the class certification; no other issues may be raised.” That framing sets a high barrier to expanding a Rule 23(f) appeal beyond Rule 23 itself.
  • Mi Familia Vota v. Ogg, 105 F.4th 313 (5th Cir. 2024) and Escobar v. Montee, 895 F.3d 387 (5th Cir. 2018): These cases supply the Fifth Circuit’s restrictive doctrine of pendent appellate jurisdiction—available only in “rare and unique circumstances,” namely when issues are “inextricably intertwined” or review is “necessary to ensure meaningful review.” The panel applied this test to reject Acadia’s attempt to add the FLSA collective orders to the Rule 23(f) appeal.
  • Bergeron v. Ochsner Health Sys., No. CV 17-519, 2017 WL 3648451 (E.D. La. Aug. 24, 2017): Cited as an example that some courts have looked to “for the benefit” concepts in meal-break disputes, but the panel emphasized that such district-court practice does not establish that Louisiana unjust enrichment or conversion adopts the FLSA’s predominant-benefit test.
  • Gilstrap v. Cross Realty, Inc., 25-45, p. 2 (La. App. 5 Cir. 12/23/25), 428 So. 3d 997: Used to define Louisiana unjust enrichment—whether the defendant “has been enriched without cause” at the plaintiff’s expense—supporting the panel’s point that state-law elements differ from the FLSA’s meal-period framework.
  • Dual Drilling Co. v. Mills Equip. Invests., Inc., 98-0343 (La. 12/1/98), 721 So. 2d 853: Used to define Louisiana conversion—whether the defendant wrongfully acquired the plaintiff’s property (here, wages)—again reinforcing divergence from the FLSA test.
  • Dean v. Akal Sec., Inc., 3 F.4th 137 (5th Cir. 2021); Bernard v. IBP, Inc. of Neb., 154 F.3d 259 (5th Cir. 1998); Naylor v. Securiguard, Inc., 801 F.3d 501 (5th Cir. 2015): These cases define and operationalize the FLSA “predominant-benefit test” for bona fide meal periods (including interruption frequency). The panel cited them chiefly to highlight what governs the FLSA claim—and then to contrast that with the lack of authority importing that same test into Louisiana tort law.
  • Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430 (5th Cir. 2021): Cited for the collective-action “similarly situated” standard and the Fifth Circuit’s approach to collective certification. This supported the conclusion that collective certification and Rule 23 certification involve distinct legal frameworks, undermining “inextricably intertwined” arguments.
  • Cleven v. Mid-Am. Apartment Cmtys., 20 F.4th 171 (5th Cir. 2021); Cruson v. Jackson Nat'l Life Ins. Co., 954 F.3d 240 (5th Cir. 2020); Elson v. Black, 56 F.4th 1002 (5th Cir. 2023); Ibe v. Jones, 836 F.3d 516 (5th Cir. 2016): These provide the Rule 23 framework, the “rigorous analysis” requirement, the abuse-of-discretion standard on review, and the specific Rule 23(b)(3) requirements. They structured the panel’s method: confirm correct standard, then assess whether the district court’s predominance/superiority/typicality/adequacy findings were within discretion.
  • Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016) and Gene & Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir. 2008): These cases frame predominance as a comparison between common and individualized questions, and define “common” questions as those susceptible to generalized proof. The panel used these definitions to accept plaintiffs’ “uniform policies + ethical obligations” theory as classwide proof.
  • Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011): Cited as a comparator for the requirement that classwide proof must actually be common (not merely a collection of individualized decisions). The panel distinguished this case by accepting evidence that policies and expectations applied “uniformly to the class.”
  • Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455 (2013): Used to police the line between certification and merits—plaintiffs need show common questions predominate, not that they will win. This supported the panel’s refusal to decide whether plaintiffs’ on-call theory ultimately succeeds under Louisiana tort law at the certification stage.
  • Kincannon v. United Airlines, Inc., 168 F.4th 713 (5th Cir. 2026): Provided the Rule 23(b)(3) superiority factors, used to uphold the district court’s manageability finding (including damages determination).
  • Stirman v. Exxon Corp., 280 F.3d 554 (5th Cir. 2002): Cited for the forgiving nature of typicality and the principle that factual differences do not defeat typicality where claims share the same essential characteristics.
  • Berger v. Compaq Comput. Corp., 257 F.3d 475 (5th Cir. 2001): Used to define adequacy—representatives must actively participate and protect absent class members. The panel applied it to reject a speculative conflict argument against Hamm.

B. Legal Reasoning

1) Rule 23(f) jurisdiction and the rejection of pendent appellate jurisdiction.
The court treated Rule 23(f) as a narrow grant: it permits discretionary interlocutory review only of “order[s] granting or denying class-action certification under” Rule 23. While pendent appellate jurisdiction can sometimes pull related matters into an appeal, the panel emphasized it is exceptional and requires either (i) issues that are “inextricably intertwined” or (ii) review necessary for “meaningful review” of the appealable order.

The decisive move was the panel’s conclusion that Acadia’s “same liability test” premise was wrong: the FLSA predominant-benefit test governed the FLSA meal-break claim, but Acadia lacked authority extending that test to Louisiana unjust enrichment or conversion. Because the state-law tort elements (enrichment “without cause”; wrongful acquisition of wages/property) differ from the FLSA inquiry, the substantive overlap was insufficient. The court also underscored distinct procedural standards: FLSA collective certification (“similarly situated” under Swales v. KLLM Transp. Servs., LLC) differs from Rule 23’s prerequisites. With both substantive and procedural divergence, the orders were not “inextricably intertwined,” so pendent jurisdiction was denied and the collective-certification appeal dismissed.

2) Predominance: classwide “on-call” theory as the common nucleus.
On predominance, the panel accepted plaintiffs’ framing: the tort claims were pursued on a single theory that the class “as a whole was effectively on call” due to the intersection of Acadia’s policies and the ethical/legal obligations of patient-care staff. Acadia’s effort to recast liability as turning on individualized interruption frequency was rejected as a distortion of the asserted theory.

Critically, the panel applied Tyson Foods, Inc. v. Bouaphakeo and Gene & Gene LLC v. BioPay LLC to ask whether the same evidence could prove the claim classwide. Evidence of uniform policies and consistent expectations across units and job titles satisfied that burden. Invoking Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, the court held it could not require plaintiffs to prove the on-call theory’s ultimate viability on the merits to certify the class; it was enough that the theory generated common questions susceptible to common answers.

3) Superiority and manageability: damages by payroll/punch data.
For superiority, Acadia argued that individualized interruption differences would cause individualized damages. The court again tied the analysis to plaintiffs’ chosen theory: if meal periods are “entirely compensable” when effectively on call, damages become an administrable arithmetic exercise—count unpaid meal periods within the limitations window using time and payroll records. Relying on the superiority factors noted in Kincannon v. United Airlines, Inc., the panel agreed the class mechanism was manageable and efficient.

4) Typicality and adequacy: representative experiences and speculative conflicts.
Typicality was upheld under Stirman v. Exxon Corp. because representatives and class members were subject to the same policies and asserted the same legal theories; the court also noted record support that at least Wilson’s breaks were not truly uninterrupted. Adequacy was upheld under Berger v. Compaq Comput. Corp.: Acadia’s claim that Hamm had an “inherent conflict” due to supervisory responsibilities was deemed speculative absent evidence she was responsible for the challenged policies or the obligations alleged to create on-call status.

C. Impact

1) Tightening Rule 23(f) appeals in “hybrid” wage cases.
The decision reinforces that defendants cannot automatically leverage Rule 23(f) to obtain interlocutory review of FLSA collective certification. In hybrid cases (FLSA collective + state-law Rule 23 class), appellate review may be bifurcated: Rule 23 issues may proceed, while collective certification remains insulated from interlocutory appeal unless independently appealable or truly “inextricably intertwined.”

2) Doctrinal separation: FLSA meal-break tests vs. Louisiana tort elements.
The court’s insistence that the FLSA predominant-benefit test does not automatically govern Louisiana unjust enrichment or conversion will likely shape pleading and certification strategies. Plaintiffs may craft state-law theories that rely on uniform policies and professional obligations rather than individualized interruption logs, while defendants may respond by targeting the merits (via dispositive motions) rather than trying to defeat certification through interruption-frequency arguments alone.

3) Certification-first, merits-later discipline.
By invoking Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, the panel signaled that challenges asserting a classwide theory is “not viable” must be carefully tethered to Rule 23 prerequisites, not used as a vehicle for premature merits adjudication. This may embolden district courts to certify where a unified theory and common proof exist, even if the underlying state-law theory is contested.

4. Complex Concepts Simplified

  • Rule 23(f) appeal: A discretionary, mid-case appeal allowed only for decisions granting or denying Rule 23 class certification. It is not a general permission slip to appeal other rulings in the case.
  • Pendent appellate jurisdiction: A narrow doctrine letting an appellate court review additional, normally unappealable issues only when they are tightly bound to the appealable issue (e.g., impossible to decide one without the other) or necessary to make the appealable review meaningful.
  • FLSA “collective action” vs. Rule 23 “class action”: An FLSA collective typically requires workers to opt in and hinges on whether they are “similarly situated.” A Rule 23 class generally binds all class members unless they opt out and requires meeting specific prerequisites (numerosity, commonality, typicality, adequacy) plus (for Rule 23(b)(3)) predominance and superiority.
  • Predominance (Rule 23(b)(3)): The common questions must outweigh individualized ones. A case can have individualized facts, but if the core liability question can be answered using common evidence, predominance can be satisfied.
  • “On call” meal breaks: Even if labeled “breaks,” time may be treated as working time if the worker must remain ready to respond in a way that meaningfully restricts personal use of the time. In this case, that idea was central factually, but the court emphasized the legal elements for state torts are distinct from the FLSA test.
  • Unjust enrichment (Louisiana): Focuses on whether the defendant was enriched “without cause” at the plaintiff’s expense.
  • Conversion (Louisiana): Focuses on wrongful taking or control over another’s property—here, allegedly wages owed.

5. Conclusion

Hamm v. Ochsner-Acadia delivers two practical signals in Fifth Circuit practice. First, a Rule 23(f) appeal is tightly confined: absent truly intertwined issues, defendants cannot use pendent appellate jurisdiction to obtain interlocutory review of FLSA collective certification. Second, for Louisiana unjust enrichment and conversion claims arising from meal-break practices, predominance can be satisfied where plaintiffs advance a unified, policy-and-obligations “effectively on call” theory supported by common proof, with damages manageable through payroll/time data. The court leaves the merits for later—preserving a disciplined boundary between certification analysis and ultimate liability.