Allan G. King, Lisa A. Schreter, and Carole F. Wilder, You Can't Opt ...

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only to the extent they create an actual conflict with the Rules. 45The Federal Rules themselves provide: “These rules govern the procedure in allcivil actions and proceedings in the United States district courts except as stated inRule 81.” 46Rule 81(a)(6) states: “These rules, to the extent applicable, governproceedings under the following laws, except as these laws provide other procedures ...”Rule 81, most recently amended in 2007, identifies seven statutes, including the NationalLabor Relations Act; it does not include the Fair Labor Standards Act. Thus, even in thisspecial category of laws, the Federal Rules are deemed to apply unless the statute inquestion states otherwise.As the Supreme Court explained in Amchem Products, Inc. v. Windsor, theprocedures of the Federal Rules should not lightly be disregarded:Federal Rules take effect after an extensive deliberativeprocess involving many reviewers: a Rules AdvisoryCommittee, public commenters, the Judicial Conference,this Court, the Congress. See 28 U.S.C. §§2073, 2074. Thetext of a rule thus proposed and reviewed limits judicialinventiveness. Courts are not free to amend a rule outsidethe process Congress ordered, a process properly tuned tothe instruction that rules of procedure “shall not abridge . . .any substantive right.” 47Similarly, in Hanna v. Plumer the Court observed:the [district] court has been instructed to apply the FederalRule, and can refuse to do so only if the AdvisoryCommittee, this Court, and Congress erred in their primafacie judgment that the Rule in question transgressesneither the terms of the Enabling Act nor constitutionalrestrictions.” 4845464748Callihan v. Schneider, 178 F.3d 800, 802 (6th Cir. 1999)..Fed. R. Civ. P. 1.Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (emphasis added).380 U.S. 460, 471 (1965).16
No court has found that the certification procedures of Rule 23 violate the Constitution orthe REA, or abridge a substantive right.Accordingly, based on the REA, and inaccordance with the pronouncements of the Supreme Court, Rule 23’s certificationrequirements apply unless they conflict with an express statutory directive to thecontrary, enacted subsequent to Rule 23.The Supreme Court’s opinion in Shady Grove Orthopedic Associates, P.A. v.Allstate holds that “like the rest of the Federal Rules of Civil Procedure, Rule 23automatically applies ‘in all civil actions and proceedings in the United States districtcourts.’” 49More specifically the Court observed:Congress, unlike New York, has ultimate authority over theFederal Rules of Civil Procedure; it can create exceptionsto an individual rule as it sees fit -- either by directlyamending the rule or by enacting a separate statuteoverriding it in certain instances. The fact that Congress hascreated specific exceptions to Rule 23 hardly proves thatthe Rule does not apply generally. In fact, it proves theopposite. If Rule 23 did not authorize class actions acrossthe board, the statutory exceptions would be unnecessary. 50For an example of how Congress indicates its intent to remove a statute from thepurview of Rule 23 consider the Immigration and Nationality Act, §1252 (e)(1):Without regard to the nature of the action or claim andwithout regard to the identity of the party or partiesbringing the action, no court may -- (A) enter declaratory,injunctive, or other equitable relief in any action pertainingto an order to exclude an alien . . . except as specificallyauthorized in a subsequent paragraph of this subsection, or(B) certify a class under Rule 23 of the Federal Rules ofCivil Procedure in any action for which judicial review is49added).50Shady Grove Orthopedic Assocs., P.A. v. Allstate, 130 S. Ct. 1431, 1438 (2010) (emphasisId. at 1438.17
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