FLACCO

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOPHER FLACCO, WINTON : CIVIL ACTION

SINGLETARY :

:

v. : NO. 24-4374

:

DANIELLE OUTLAW, CHARLES :

RAMSEY, RICHARD ROSS, JR., :

KEVIN BETHEL, MICHAEL :

ZACCAGNI, PEDRO RODRIGUEZ, :

ALBERT D’ATTILIO, JOHN :

STANFORD, JR., CANDI JONES, CITY :

OF PHILADELPHIA :

MEMORANDUM

KEARNEY, J. November 7, 2025

Two Philadelphia ranking police officers sued the City of Philadelphia, several of its

Police Commissioners, and several of its human resources directors seeking overtime

compensation during emergency periods over the past twelve years based on their interpretation

of a Civil Service Commission regulation governing overtime pay during a period of emergency.

They seek, after we declare the City misinterprets the regulation, to order the City pay them

overtime compensation for hours they recorded on daily activity sheets since 2013 as part of the

daily recording of hours and then separate out the emergency from non-emergency time on a

day-by-day basis for each officer. The City’s potential overtime compensation liability to the two

ranking officers will be resolved following the close of discovery.

But today is a different issue: the two ranking officers now ask for permission under

Federal Rule of Civil Procedure 23(b)(3) to represent a class of 230 salaried ranking officers

claiming they are all owed money for overtime work authorized by the then-Police

Commissioner during periods of emergency since 2013. We afforded extensive discovery to

allow the ranking officers and City to identify common issues. We held extensive oral argument

on the request for class treatment.

We decline to certify a proposed class of ranking officers who self-report overtime

without distinguishing emergency time over the last twelve years. We lack a common answer as

to how we could evaluate overtime compensation for 230 ranking officers without an

individualized assessment of the exact hours they worked, at whose direction, for what purposes,

and accounting for the compensation paid to them years ago for non-emergency time billed with

other time under a collective bargaining agreement. The ranking officers’ lack of a common

question arising from their view of a global issue of the City misinterpreting a Civil Commission

regulation affirms our finding after rigorous examination required by our Court of Appeals

including as recently as six years ago in an analogous case reviewing a request to certify a class

of workers seeking overtime wages. The salaried ranking officers’ analysis does not work in a

damages class as the individualized assessments predominate over the common legal issue of

whether the City and its agents misinterpreted a Civil Commission regulation for over a dozen

years.

I. Adduced Evidence

Christopher Flacco and Winton Singletary serve as Philadelphia Police Department

Ranking Officers. Ranking Officers include Captains, Staff Inspectors, Inspectors, and Chief

Inspectors.1 Their compensation is partially defined by regulations issued by the Civil Service

Commission and by a Collective Bargaining Agreement. Ranking Officers typically work forty

hours per week with an eight-hour workday and the workday can be flexed.2

The City must compensate overtime authorized by the Commissioner on emergency periods at

the regular rate of pay and not use compensatory time.

The Pennsylvania General Assembly issued the Philadelphia Home Rule Charter in

1949.3 The General Assembly through the Home Rule Charter gave the City authority to manage

its operations and issue regulations.4 It created the Personnel Director to draft regulations on civil

service employee classification, pay, and work conditions for review by the Civil Service

Commission.5 It authorized the Commission to approve Civil Service Regulations.6 The

Commission enacted Civil Service Regulation 31.06 fifteen years later detailing the “Emergency

overtime pay for ranking officers in the police and fire departments” and amended it in 1976.7

The Commission requires the City pay ranking officers overtime at the regular pay rate

when their Commissioner authorizes them to work during an undefined “period of emergency

nature” through Regulation 31.06.8 The Commission also directs the ranking officers cannot

“accrue compensatory time during the period of the emergency.”9 Ranking officers working

overtime when authorized by the Commissioner during a period of emergency nature must be

paid overtime and not through compensatory time.

The City also compensates non-emergency overtime with compensatory time under a

Collective Bargaining Agreement.

Ranking Officers Flacco and Singletary also belong to a bargaining unit represented by

the Fraternal Order of Police, Lodge No. 5.10 The Policemen and Firemen Collective Bargaining

Act governs the bargaining relationship between the Fraternal Order and the City.11 The

Fraternal Order and the City have negotiated under the Act since the 1960s resulting in the now

governing Collective Bargaining Agreement.12 The Agreement purports to define Ranking

Officers’ employment including compensation.13 The Agreement incorporates existing Civil

Service Regulations and clarifies “[t]he inclusion of these Civil Service Regulations is for the

purpose of providing a more complete and lucid document and is not intended to abridge in any

way the right of the City under the Home Rule Charter to manage its employees and to effect

changes in all personnel matters, including the right of the Civil Service Commission to amend

any Civil Service Regulations consistent with the City’s obligations. . . .”14

The Agreement grants compensatory time for hours worked beyond the regular workday,

up to a 1,300-hour cap.15 Ranking Officers may use compensatory time for leave, cash out up to

120 hours annually, and cash out up to 690 hours at retirement.16 Each use or cash out reduces

the Ranking Officer’s balance but accrual may continue until the 1,300-hour cap is reached.17

The Agreement does not make Ranking Officers eligible for overtime pay for hours worked

beyond forty each week.18 It only allows straight-time pay for extra hours for specific events or

shifts.19 The City and the Fraternal Order have also made agreements outside the Collective

Bargaining Agreement to pay additional cash compensation for special events and

circumstances.20

Both the Collective Bargaining Agreement and Regulation 31.06 address how Ranking

Officers are compensated for work beyond their regular schedules. The Agreement provides

compensatory time while Regulation 31.06 separately directs Ranking Officers performing work

“during a period of emergency nature” receive wage payments rather than compensatory time.

Ranking Officers’ time reporting practices.

Ranking Officers record their hours on a daily basis using the Daily Attendance Report

system.21 They must enter all regular and overtime work in the Report system.22 Police

Department Directive 11.1 (Daily Attendance Report) directs each overtime entry include the

Ranking Officer’s time in and out, total hours earned, an assignment code “to show how the

overtime was earned,” and “the reason for accrual in the ‘Remarks’ section.”23

Appendix C (Overtime Codes) to Directive 11.1 lists nearly 100 different assignment

codes used to record overtime hours.24 Ranking Officers use Code 31, categorized as

“administrative,” for all time worked beyond a Ranking Officer’s regular schedule unless the

Department assigns a special event-specific code.25 Ranking Officers use Code 31 for a wide

range of work, including administrative duties, “emergency” work, meeting preparation,

community events, trainings, and other incidents.26 Ranking Officers Flacco and Singletary have

also used other codes, such as Codes 35, 43, 46, 75, 78, and 85, to record overtime.27 The

Commissioner and City’s payroll professionals do not provide a specific code for “emergency”

work.28

The City through Appendix C further requires “[r]emarks explaining the reason for

accrual [to be] stated for each entry” and states all compensatory time “will be substantiated in

the ‘Remarks’ column.”29 But remarks are not consistently provided or recorded in a

standardized format.30 Some remarks for Code 31 entries contain only single words like

“captain” or “inspector,” while others include brief descriptions such as “staffing issue 3plt,”

“comp time,” “insp – admin,” “S/I A&I,” or “C/I OPR.”31

Ranking Officers Flacco and Singletary and eight additional Ranking Officers now report

they spent an average of three to four hours per week beyond their forty-hour schedules

“performing emergency work” across their employment as Ranking Officers.32 They perform

many of the same types of “emergency” work, such as active-shooter incidents, assaults, mass

shootings, robberies, fires, burglaries, riots, barricades, protests, looting events, serious medical

emergencies, motor-vehicle accidents, drug-related incidents, and mental-health crises, but also

describe distinct incidents.33 Some Ranking Officers report train derailments; others report

airplane crashes, parades, sporting events, major concerts, or “special event” details.34

The confusion arises because Ranking Officers accrue compensatory time for all

overtime hours—routine and “emergency” alike—under the Collective Bargaining Agreement,

which limits accrual to 1,300-hours. This accounting includes “emergency period” work covered

by Regulation 31.06, which requires the City pay regular wages instead of compensatory time.

Ranking Officers may use or cash out this time but receive no pay for “emergency period” work

under Regulation 31.06. Those who exceed the 1,300-hour cap while performing “emergency”

work receive no additional compensation, even though Regulation 31.06 sets no such limit.

The Ranking Officers learn of Regulation 31.06 in 2023.

The City’s former Human Resources Director issued a memorandum to “All Offices,

Boards, and Commissions” titled “Amendments to the Civil Service Regulations – Transmittal

#336” on November 13, 2013.35 The memorandum transmitted updates to the Civil Service

Regulations effective September 23, 2013.36 Regulation 31.06 appeared in the transmittal

although the Commission did not then amend it (and has not done so since 1976).37 The

Commissioners and the Police Commander Association Presidents met regularly in the years

following to discuss issues affecting Ranking Officers.38 The Association Presidents alleged they

frequently asked the Commissioners about Ranking Officers’ lack of pay for emergency work

performed beyond regularly scheduled hours during these meetings.39 Ranking Officers allegedly

echoed these same concerns during Command briefings, incident briefings, and post-incident

debriefings throughout the same period.40

Two Ranking Officers discovered Regulation 31.06 in February 2023 while researching

their complaints about unpaid emergency work.41 Ranking Officers continued to raise the issue

of wages for emergency overtime work with Department and City officials throughout 2023.42

The Commander Association sent a formal letter to City officials in May 2024 requesting the

City implement Regulation 31.06 for Ranking Officers and pay them backpay for emergency

work performed since 2013.43 Ranking Officers Flacco and Singletary and the eight additional

Ranking Officers did not become aware of Regulation 31.06 until Fall 2023.44 The City did not

agree and has not paid regular wages for “emergency period” work authorized by the

Commissioner beyond their regularly scheduled hours under Regulation 31.06.45

Ranking Officers Flacco and Singletary sue for overtime backpay.

Ranking Officers Flacco and Singletary sued the City of Philadelphia and nine current

and former Commissioners and Philadelphia Office of Human Resources Directors in their

individual capacities.46 They are seeking overtime wages for “emergency” work they allegedly

performed since September 2013 because Regulation 31.06 “created an exception, mandating

that [ R]anking [O]fficers receive wages, not compensatory time, for hours worked beyond their

regular schedule during an emergency.”47 They allege the Commissioners, Human Resources

officials, and City (1) failed to pay Ranking Officers wages for “emergency” work performed

beyond their regularly scheduled hours as required by Regulation 31.06 and (2) failed to provide

procedural due process before denying those wages.48 They assert a claim under the

Pennsylvania Wage Payment and Collection Law against the Commissioners and Human

Resources officials and a Fourteenth Amendment procedural due process claim against the

Commissioners, Human Resources officials, and City.49

The parties engaged in extensive discovery closing on November 17, 2025.50 We begin

trial on January 5, 2026.51

II. Analysis

Ranking Officers Flacco and Singletary now seek to certify a class under Federal Rules

of Civil Procedure 23(a) and 23(b)(3) of “[a]ll [Philadelphia Police Department] Captains, Staff

Inspectors, Inspectors, or Chief Inspectors who have performed unpaid emergency work beyond

their scheduled hours since September 23, 2013.”52 They estimate the putative class includes

approximately 230 Ranking Officers because the City stated approximately 230 individuals have

served as Ranking Officers from 2013 to present.53 But serving as a Ranking Officer does not

necessarily mean the Ranking Officer performed “unpaid emergency work” “authorized by the

Commissioner” within the meaning of Regulation 31.06. As discussed below, even identifying

who belongs in the putative class depends on individualized determinations about the nature of

each Ranking Officer’s work and whether the City otherwise compensated the Ranking Officer

for the overtime.

We are directed by our Court of Appeals class certification is appropriate only if, after

“rigorous analysis,” we conclude Ranking Officers Flacco and Singletary meet “each and every

element” of Federal Rule of Civil Procedure 23 “by a preponderance of the evidence.”54 “[E]very

putative class action must satisfy the four requirements of Rule 23(a) and the requirements of

either Rule 23(b)(1), (2), or (3).”55

The Supreme Court through Rule 23(a) defines four prerequisites for class certification:

“(1) the class must be so numerous that joinder of all members is impracticable (numerosity); (2)

there must be questions of law or fact common to the class (commonality); (3) the claims or

defenses of the representative parties must be typical of the claims or defenses of the class

(typicality); and (4) the named plaintiffs must fairly and adequately protect the interests of the

class (adequacy of representation, or simply adequacy).”56 The Supreme Court through Rule

23(b)(3) requires “the questions of law or fact common to class members predominate over

questions affecting only individual members” and the class action mechanism be “superior to

other available methods for fairly and efficiently adjudicating the controversy.”57 When a

plaintiff seeks class certification under Rule 23(b)(3), as Ranking Officers Flacco and Singletary

do here, the Rule 23(a) commonality requirement is subsumed by the Rule 23(b)(3)

predominance requirement.58

Ranking Officers Flacco and Singletary assert the class should be certified under Rule

23(b)(3) because the putative class includes approximately 230 identified Ranking Officers; all

Ranking Officers share materially similar employment circumstances governed by the same

policies and pay practices; the key legal and factual issues apply uniformly across the putative

class; their own claims arise from the same course of conduct and seek the same relief, ensuring

their interests align with the putative class; and collective adjudication is the most fair and

efficient way to resolve the claims.59

The City and its named Police Commissioners and Human Resources Directors oppose

class certification under Rule 23(b)(3).60 They overly focused on their interpretation of

Regulation 31.06 as a matter of liability and parsing the terms which all parties agreed can be

defined as a matter of law assuming no ambiguity. But, returning to the Ranking Officers’

present motion, the City and its agents argue Ranking Officers Flacco and Singletary: (1) cannot

establish predominance or commonality because each putative class member’s claims involves

highly individualized factual and legal determinations; (2) differ from their putative class

members such that they cannot show typicality and adequacy; (3) have not presented the number

of class members, or a methodology for calculating that number, failing to prove numerosity and

ascertainability; and (4) cannot show superiority as the putative class is unmanageable and ill-

suited for class treatment.61

We held extensive oral argument aided by experienced counsel.62 The parties confirmed

the multiple individualized assessments required to determine overtime wages owed for days

claimed to be “emergency periods” authorized by the Commissioners over the past twelve years.

Ranking Officers Flacco and Singletary have not satisfied the commonality prong under Rule

23(a)(2) or the predominance prong under Rule 23(b)(3). We must deny class certification.

A. Ranking Officers Flacco and Singletary have not shown a plausible basis to

find commonality and predominance.

Ranking Officers Flacco and Singletary have not met the commonality nor predominance

requirements set by the Supreme Court before certifying they can represent 230 ranking officers

for overtime wages over the past twelve years.

“The commonality and predominance requirements are closely linked.”63 “The key to

commonality is not the raising of common ‘questions’—even in droves—but rather, the capacity

of a class-wide proceeding to generate common answers apt to drive the resolution of the

litigation. Dissimilarities within the proposed class are what have the potential to impede the

generation of common answers.”64 But the predominance requirement is “far more demanding

than the commonality requirement.”65 “If the commonality requirement cannot be met, then the

more stringent predominance requirement obviously cannot be met either.”66

Predominance “asks whether the common, aggregation-enabling, issues in the case are

more prevalent or important than the non-common, aggregation-defeating, individual

issues.”67 We must “give careful scrutiny to the relation between common and individual

questions in a case.”68 “Individual issues are those ‘where members of a proposed class will need

to present evidence that varies from member to member’ and common issues are those where

‘the same evidence will suffice for each member to make a prima facie showing [or] the issue is

susceptible to generalized, class-wide proof.’”69 “Although the presence of individual questions

does not per se rule out a finding of predominance and individual questions need not be absent, a

putative class fails to clear the predominance requirement when a district court formulates some

prediction as to how specific issues will play out in a given case and concludes it cannot be

adequately assured that individualized evidence will not later overwhelm the case and render it

unsuitable for class-wide adjudication.”70 “The purpose of Rule 23(b)(3)'s predominance

requirement ‘is to determine whether a class action would achieve economies of time, effort, and

expense and promote . . . uniformity of decision as to persons similarly situated, without

sacrificing procedural fairness.’”71 We “must be pragmatic in our assessment of the entire action

and all the issues involved.”72

Ranking Officers Flacco and Singletary claim they satisfy the commonality requirement

because their claims “plainly present common questions of law and fact” supported by

“materially-identical proof.”73 They identify several shared questions but assert the “overarching

common question” is whether the City, Commissioners, and Human Resources Directions should

have paid wages instead of compensatory time for emergency work Ranking Officers performed

beyond their regular schedules.74 They maintain all Ranking Officers worked under the same

employment structure, pay practices, and departmental directives governing overtime and

compensatory time.75 Because the claims “turn on clearly-identifiable common issues, they

satisfy the commonality requirement.”76

They further contend they meet the predominance requirement because the common

questions of law and fact “clearly” outweigh individual differences among putative class

members.77 They assert the City, Commissioners, and Human Resources Directors’ alleged

uniform course of conduct—failure to pay wages under Regulation 31.06—applied equally to all

Ranking Officers.78 Individualized issues such as whether each Ranking Officer “may be entitled

to different damages based on the number of weeks they worked” do not “preclude

commonality.”79 The “need to calculate damages on an individual basis . . . is not a basis to deny

certification.”80

Ranking Officers Flacco and Singletary offer the ten putative class members’ sworn

declarations describing the types of overtime emergency work they performed and the time spent

on this work to support their argument.81 “Additional evidence confirming and supporting this

work is found [in the Daily Attendance Reports which] were used to record most of the

emergency work the Class members performed beyond their scheduled hours under [] Codes 31,

35, 43, 46, 75, 78, 85, and others.”82 Ranking Officers Flacco and Singletary maintain they and

the putative class members “were typically scheduled to work 40 hours per week,” “routinely

spent 3-4 hours beyond their regular schedule each week on emergency-related work (e.g.,

staffing police shootings, riots, protests, looting events, and hostage situations),” and “typically

used Overtime Code 31 and various other overtime codes to record this work.”83 They also

acknowledge performing non-emergency work beyond forty hours per week and receiving

compensatory time.84

The City along with its named Police Commissioners and Human Resources Directors

respond Ranking Officers Flacco and Singletary cannot satisfy the commonality or

predominance requirements because each putative class member’s entitlement to relief under

Regulation 31.06 turns on highly individualized factual inquiries.85 They contend there is no

uniform or objective definition of period of emergency, no standardized process for authorizing

such work, no standard overtime code for emergency work in the Daily Attendance Records, and

little, yet widely varied, specificity in the remarks Ranking Officers enter to describe their work

effort.86 Because Ranking Officers’ schedules are flexible and their working hours vary,

determining whether the work was performed during a qualifying emergency, whether it

occurred outside the Ranking Officer’s regular schedule, and whether the work went unpaid

would require officer-by-officer, event-by-event, factual determinations.87 They argue those

questions cannot be resolved through common proof. 88

The City, Commissioners, and Human Resources Directors also argue the examples

offered by Ranking Officers Flacco and Singletary and eight other Ranking Officers are too

broad and inconsistent to define class-wide “emergency period” work.89 They assert we would

have to conduct individualized factual analyses for each Ranking Officer, each event, and each

time entry because there is not a reliable method to identify which events qualify as emergencies

or which hours fall under Regulation 31.06.90 Assessing whether the City already compensated

for this alleged varied overtime work poses another individualized layer, as compensatory time

balances fluctuate with use, cash-outs, and accruals and include both emergency and non-

emergency hours.91 Determining whether each alleged instance of emergency work has gone

unpaid would require an officer-by-officer assessment of timekeeping records, balances, and

cash-outs.92

We are guided by our Court of Appeals’ discussion of overtime wage claims on behalf of

a putative claim including individualized determinations and predominance six years ago in

Ferreras v. American Airlines.93 The putative class in Ferreras included all non-exempt, hourly

American Airlines employees at Newark Airport.94 The employees alleged American Airlines’

timekeeping system paid them based on their scheduled shifts instead of their actual hours

worked, resulting in unpaid time.95 The timekeeping system calculated pay for the scheduled

shift duration and automatically deducted thirty minutes for a meal break.96 The system assumed

they worked only during their scheduled hours and excluded any extra time before or after shifts

even if employees clocked in early or clocked out late.97 Employees who worked during those

periods or through meal breaks received extra pay only if they reported the work to a supervisor

and obtained approval as an “exception.”98 They otherwise received no pay for time worked

outside their scheduled shifts.99 The two questions common to the class asked: (1) whether

hourly-paid employees are not being compensated for all hours worked “due to the manner in

which American operates its timekeeping system;” and (2) whether American Airlines has a

policy that discourages employees from seeking exceptions for work done outside of their

shifts.100

Our Court of Appeals vacated the grant of class certification because the employees

failed to show commonality and therefore failed to show predominance. Neither question could

be resolved on a class-wide basis because it was “not clear . . . how those questions can ‘generate

common answers apt to drive the resolution of the litigation.’”101 The first question—whether

certain employees are not being compensated for all hours worked—“cannot be answered by

common evidence about the timekeeping system because a yes or no answer tells us nothing

about actual common work habits, if there are any.”102 The employees “will still need to go

through the process of proving that each individual employee worked overtime and is thus

entitled to additional compensation, regardless of any common evidence about American’s

timekeeping system.”103

The employees also failed to show predominance because they “will have to offer

individualized proof to show that they were actually working during the various time periods at

issue, the main point of dispute in this case.”104 They “cannot rely on the time clock to prove

when they were actually working because there is conflicting evidence about whether they were

working the entire time they were clocked in.”105 Some putative class members “testified that

they began working immediately after clocking in” and “[o]thers testified that they chatted with

co-workers or watched TV after clocking in but before their shifts began.”106 Whether the

employees “were actually working pre- and post-shift is an open and inherently individualized

question.”107 They “would have to offer individualized evidence regarding which meal breaks

they spent working and for how long. And, of course, any claim that an employee was working

off-the-clock would require an individualized inquiry as to when and to what extent that

happened.”108 Our Court of Appeals found “[t]here is no easy measure, like the time clock, to

which the parties can turn to determine the amount of time an employee may have been working.

Accordingly, plaintiffs would again need to provide particularized evidence to show when

employees were working, so common issues do not predominate over individual ones.”109

We are persuaded by our Court of Appeals’ analysis in Ferreras when reviewing a

request to certify a class seeking overtime wages.110 Ranking Officers Flacco and Singletary’s

proposed common questions will not generate common answers to drive the resolution of the

litigation. Their central question—whether Regulation 31.06 required the City, Commissioners,

and Human Resources Directors to pay wages instead of compensatory time for emergency work

performed beyond regular schedules—is not what they are seeking by way of damages in their

case. And the issues as to how we could possibly measure the overtime for emergency matters

cannot be answered through common proof. “A yes or no answer tells us nothing about the

actual common work habits.”111 Applying our Court of Appeals’ specific language in Ferreras,

Ranking Officers Flacco and Singletary “will still need to go through the process of proving that

each individual [Ranking Officer] worked [unpaid emergency] overtime and is thus entitled to

[wages], regardless of any common evidence about [the Commissioners, Human Resources

Directors, and City’s common course of conduct equally denying the wages].112 Shared policies

and codes cannot generate common answers when the core disputes—whether a Ranking Officer

performed qualifying emergency work and whether it went unpaid on a day-by-day basis

accounted in commingled time records—depend on the facts of each event, each time entry, and

each Ranking Officer. Whether and to what extent Ranking Officers performed “unpaid

emergency” work cannot be established through common evidence.

The same problem prevents us from even identifying the proper members of the putative

class. We cannot determine who falls within the putative class, let alone whether a purportedly

common question applies to them, without resolving the same individualized inquiries into what

work each Ranking Officer performed, whether it qualified as “emergency” work under

Regulation 31.06, and whether the City already compensated for it (possibly in error) as part of

the commingled emergency and other overtime.

The ten declarations Ranking Officers Flacco and Singletary offer confirm these central

differences. Each declarant identifies many overlapping types of emergency work: active shooter

incidents, assaults, mass shootings, robberies, fires, burglaries, riots, barricades, protests, looting

events, serious medical emergencies, motor vehicle accidents, drug-related incidents, and mental

health crises.113 But the declarations also reflect individual differences. For example, Ranking

Officers McCarrick and Singletary identify train derailments,114 while Ranking Officer

Heinzeroth identifies an airplane crash.115 Ranking Officers Flacco and Layton identify parades

and sporting events,116 and Ranking Officer Love-Craighead identifies “special event details.”117

But Ranking Officer McCarrick identifies “mass gatherings like major concerts/professional

sports celebration events and planning.”118 Ranking Officer Clark alone identifies injured

officers and officer deaths.119 These factual differences mirror the differing work patterns

precluding predominance as our Court of Appeals instructed in Ferreras.

The Ranking Officers’ Daily Attendance Reports also offer no common means of

resolving these differences. Ranking Officers record all of their overtime under multiple codes

and the most commonly used Code 31 captures both administrative and emergency work.

Remarks fields are often blank or contain only brief notations such as “captain,” “comp time,” or

“insp – admin.”120 No uniform code or remark distinguishes emergency work from routine

overtime. Determining whether a particular entry qualifies as emergency work under Regulation

31.06 requires reviewing each Ranking Officer’s reports, understanding the context of each

event, and assessing whether it occurred during an “emergency.” Ranking Officers Flacco and

Singletary “will have to offer individualized proof they were actually [performing emergency

work] during the [various periods of overtime].”121

Ranking Officers Flacco and Singletary would still need individualized proof to show the

City did not pay for “emergency” work even if they could identify when each Ranking Officer

performed such work. Ranking Officers accrue, use, and cash out compensatory time at varying

times and their balances combine hours from both emergency and non-emergency work.

Determining whether a particular instance of “emergency” work remains uncompensated would

require reviewing each Ranking Officer’s time records, usage, and cash-out history. These

inquiries depend on individualized evidence and cannot be resolved through proof common to

the class.

We are also not persuaded by the cases Ranking Officers Flacco and Singletary rely on to

support commonality and predominance. In In re Comcast Corp. Set-Top Cable Television Box

Antitrust Litigation, Judge Brody found commonality because all plaintiffs alleged the same

injury—the payment of supracompetitive prices—stemming from a single, uniform tying

arrangement among other common questions of fact and law.122 Judges Robreno and Murphy’s

analyses detailed in Altnor v. Preferred Freezer Servs., Inc. and Davis v. Target Corp. likewise

involved uniform policies applied identically to all putative class members.123 Unlike in those

cases, Regulation 31.06 before us does not operate as a single policy affecting all Ranking

Officers in the same way. Whether it applies to a Ranking Officer depends on individualized

determinations of the work performed as authorized by the Commissioner on a particular day,

whether it qualified as “emergency” work, and whether the City otherwise compensated for this

time on a day-by-day basis. And the Ranking Officers’ reliance on our Court of Appeals’

analysis a few months ago in Drummond v. Progressive Specialty Ins. Co. confirms our view.

Our Court of Appeals vacated the grant of class certification because “[t]he District Court would

need to evaluate plaintiff-by-plaintiff proof . . . [as] to which plaintiffs [the defendant] is liable”

and so “common issues as to [the defendant’s] liability do not predominate.”124

Ranking Officers Flacco and Singletary did not adduce evidence allowing a class-wide

resolution seeking back pay for overtime under Rule 23(b)(3). The essential questions—what

counted as “emergency” work, whether a Commissioner authorized it, and whether the City

already compensated for it—require granular, officer-by-officer analysis. The evidence does not

reveal a uniform policy able to be tested with common proof but instead a collection of

individualized determinations dominating the record.

B. We do not opine on the remaining Rule 23(a) requirements or other aspects

of Rule 23(b)(3).

We need not today address numerosity, typicality, and adequacy of representation under

Rule 23(a), ascertainability or the superiority prong of Rule 23(b)(3), or other arguments relating

to tolling of the statute of limitations on an officer-by-officer basis.

III. Conclusion

Ranking Officers Flacco and Singletary are proceeding on a claim the City did not pay

them for overtime authorized by the then-Commissioners for periods of emergency under the

Civil Service Commission’s regulation. Their proofs are necessarily different on a day-by-day

basis for their cases let alone for 230 salaried ranking officers. They did not adduce evidence

allowing us to certify a class of other ranking officers (at an unknown number) who also billed

for overtime which may have been related to emergency periods authorized by the then-

Commissioner and which the City did not otherwise compensate them under a collective

bargaining agreement. We find these individualized assessments of the exact hours they worked,

at whose direction, for what purposes, and accounting for the compensation paid to them years

ago for non-emergency time billed with other time under a collective bargaining agreement as

presented today do not allow class certification on a damages class under Rule 23(b)(3).125

1 ECF 75-1 at 1.

2 ECF 77-8, Stanford Decl. ¶ 27, Ex. A at 11.

3 ECF 53 ¶ 22.

4 Id. (citing Home Rule Charter §1-100).

5 Id. ¶ 23 (citing Home Rule Charter §7-400).

6 Id. ¶ 24 (citing Home Rule Charter §7-200).

7 ECF 77-9, LaBletta Decl. ¶ 10, Ex. A. The City suggested the first enactment responded to

emergencies created by political unrest and the second in response to widespread unrest in

Philadelphia. The Commission has not amended Regulation 31.06 since 1976.

8 ECF 75-3, App25. The full text of Regulation 31.06 reads:

Notwithstanding any contrary provisions in these Regulations, ranking officers of

Captain to Chief Police Inspector inclusive in the Police Department and ranking

officers of Battalion Chief and above in the Fire Department authorized to work

by their respective Commissioners during a period of emergency nature, in excess

of the number of hours of their regularly scheduled work day or, for all hours

worked on a non-scheduled work day shall, for all hours of such overtime work,

be paid at their then regular rate of pay. Personnel paid in accordance with this

Section will not be entitled to accrue compensatory time during the period of the

emergency. Id.

9 Id.

10 ECF 77-8, Stanford Decl., Ex. A at 1.

11 Id.; ECF 77-10, Leheny Decl. ¶ 7.

12 ECF 77-10, Leheny Decl. ¶ 7.

13 ECF 77-8, Stanford Decl., Ex. A at 1; 43 P.S. § 217.1, et seq.

14 ECF 77-8, Stanford Decl., Ex. A at 1–2.

15 Id. at 12 (“Compensatory Time (In Lieu of Overtime)” – “Employees at the rank of Captain or

above shall be granted compensatory time in lieu of overtime for all hours worked in excess of

the normal work day. Compensatory time shall be computed on an hour for hour basis, and may

be accrued up to thirteen hundred (1,300) hours maximum, effective July 1, 2014.”).

16 Id. at 13.

17 Id.; ECF 77-8 Stanford Decl. ¶ 23.

18 ECF 77-8, Stanford Decl., Ex. A at 60–61; ECF 53 ¶ 26.

19 Id.

20 ECF 77-9, LaBletta Decl. ¶ 12; ECF 75-3, App76, 104–05.

21 ECF 75-3, App106–07; see also id., App61–69.

22 Id., App56, 61.

23 Id., App66.

24 Id., App56–60.

25 ECF 75-1 at 3, 10; ECF 75-3, App77–78.

26 ECF 53 ¶ 37; ECF 75-3, App77–78.

27 ECF 75-1 at 3; ECF 75-3, App33, 48.

28 ECF 77-8, Stanford Decl. ¶¶ 30–31.

29 ECF 75-3, App56.

30 ECF 75-3, App78; see also id., App279–82.

31 Id., App279–80.

32 Id., App284–85, 289, 293, 297–98, 301, 305, 309–10, 313–14, 318, 322. Ranking Officer

Singletary reports he spent “10-12 hours” per week as distinct from other Ranking Officers. Id.,

App322.

33 Id.

34 Id., App293, 297, 309, 314, 318, 322.

35 Id., App23.

36 Id.

37 Id., App23–25.

38 ECF 53 ¶ 39.

39 Id.

40 Id. ¶¶ 40–43.

41 Id. ¶ 44.

42 Id. ¶¶ 45–46.

43 Id. ¶ 47.

44 ECF 75-3, App286, 290, 295, 299, 303, 307, 311, 315, 320, 324.

45 ECF 53 ¶ 48.

46 Id. ¶¶ 5–16. They sue Commissioners Charles Ramsey, Richard Ross, Jr., John Stanford, Jr.,

Danielle Outlaw, and Kevin Bethel, as well as Philadelphia Office of Human Resources

Directors Albert D’Attilio, Pedro Rodriguez, Michael Zaccagni, and Candi Jones. Id. ¶¶ 7–15.

47 ECF 75-1 at 5.

48 ECF 53 ¶ 1–2.

49 Id.; 43 Pa. C.S. §§ 260.1, et seq.; 42 U.S.C. § 1983.

50 ECFs 69, 81.

51 Id.

52 ECF 75-1 at 2.

53 Id. at 13.

54 In re Citizens Bank, N.A., 15 F.4th 607, 612 (3d Cir. 2021).

55 Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590 (3d Cir. 2012) (citing Fed. R. Civ. P.

23(a)-(b)).

56 Id. at 590–91 (quoting Fed. R. Civ. P. 23(a)).

57 Fed. R. Civ. P. 23(b)(3).

58 Ferreras v. Am. Airlines, Inc., 946 F.3d 178, 185 (3d Cir. 2019) (quoting Danvers Motor Co.,

Inc. v. Ford Motor Co., 543 F.3d 141, 148 (3d Cir. 2008)). Our Court of Appeals explained “we

consider the Rule 23(a) commonality requirement to be incorporated into the more stringent Rule

23(b)(3) predominance requirement and therefore deem it appropriate to ‘analyze the two factors

together, with particular focus on the predominance requirement.’” Sullivan v. DB Invs., Inc.,

667 F.3d 273, 297 (3d Cir. 2011) (quoting In re Ins. Brokerage Antitrust Litig., 579 F.3d 241,

266 (3d Cir. 2009)).

59 ECF 75 ¶¶ 2–8. We addressed the largely declaratory nature of the Ranking Officers’ claim

during oral argument. They essentially ask us to find the City misinterprets Regulation 31.06 in

the first instance.

60 See ECF 77.

61 Id. at 2.

62 We pause to again extend our appreciation for counsels’ willingness to present oral argument

at the Upper Dublin High School as part of our Court’s community outreach through civics

education. ECF 82. The longest government lapse in appropriations in our nation’s history

required we cancel this important civics education and outreach as we could not compensate our

law clerks and staff for travel and time out of our Courthouse. ECF 84.

63 Ferreras, 946 F.3d at 185.

64 Connelly v. Amazon.com Servs., LLC, No. 23-02768, 2025 WL 693258, at *4 (E.D. Pa. Mar. 4,

2025) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)) (emphasis in original).

65 Ferreras, 946 F.3d at 185 (quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305,

311 (3d Cir. 2008)).

66 Id.

67 Id. (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)).

68 Id. (internal quotation marks omitted).

69 Drummond v. Progressive Specialty Ins. Co, 142 F.4th 149, 159 (3d Cir. 2025) (quoting Tyson

Foods, 577 U.S. at 453).

70 Id. (internal quotation marks and citations omitted).

71 Id. at 162 (quoting Sullivan, 667 F.3d at 336 (Scirica, J., concurring)).

72 Id. at 159 (internal quotation marks and citations omitted).

73 ECF 75-1 at 14.

74 Id.; ECF 80 at 1. The other common questions include whether the pay should be calculated at

a straight-time or overtime rate and whether the City, Commissioners, and Human Resources

Directors were entitled to substitute compensatory time in place of wages. ECF 75-1 at 14.

75 ECF 75-1 at 14.

76 Id. at 14–15.

77 Id. at 18.

78 Id.

79 Id. at 15 n.5.

80 ECF 80 at 5 (citing Drummond, 142 F.4th at 156 n.3).

81 ECF 75-1 at 7–8; ECF 80 at 3; ECF 75-3, App284–85, 289, 293, 297–98, 301, 305, 309–10,

313–14, 318, 322.

82 ECF 80 at 3; ECF 75-3, App33, 48, 56–59, 279–82.

83 ECF 75-1 at 10 (emphasis added).

84 Id.

85 ECF 77 at 7, 9.

86 Id. (citing ECF 77-8, Stanford Decl. ¶¶ 9–12, 30–31; ECF 77-11, Kim Decl. ¶ 13.)

87 Id. at 7.

88 Id.

89 Id. at 8–9.

90 Id. at 9.

91 Id. at 10–11.

92 Id.

93 946 F.3d 178 (3d Cir. 2019).

94 Id. at 181.

95 Id.

96 Id.

97 Id.

98 Id.

99 Id.

100 Id. at 185.

101 Id. (quoting Wal-Mart, 564 U.S. at 350) (emphasis in original).

102 Id.

103 Id. (emphasis added).

104 Id. at 186.

105 Id.

106 Id.

107 Id.

108 Id.

109 Id.

110 Ranking Officers Flacco and Singletary submitted a post-argument letter brief hoping to

distinguish our Court of Appeals’ analysis in Ferreras. See ECF 86. They contend “no analogous

facts or circumstances exist” because the Daily Attendance Report “entries represent affirmative,

contemporaneous records of actual hours worked, so unlike in Ferreras, do not call for

individual questions about whether the work reflected by the [overtime] Code entries was

actually recorded or performed.” Id. at 1. They also note our Court of Appeals in Ferreras

addressed a management policy discouraging exception requests—an issue not present here—

and argue the City, Commissioners, and Human Resources Directors uniformly refused to pay

wages for any “emergency” work recorded under Code 31 or similar codes. Id. at 1–2.

We are not persuaded. The existence of contemporaneous entries does not resolve the

individualized questions central to class certification here: whether a given entry (in whole or in

part) reflects an “emergency” and whether the work remains uncompensated. Unlike in Ferreras,

where variation arose from employees’ work habits, here the variation lies in what each Ranking

Officer did, how they recorded it, and whether they already received compensatory time—

differences likewise precluding class-wide resolution.

111 Ferreras, 946 F.3d at 185.

112 Id.

113 ECF 75-3, App284–85, 289, 293, 297–98, 301, 305, 309–10, 313–14, 318, 322.

114 Id., App318, App322.

115 Id., App297.

116 Id., App293, App309.

117 Id., App314.

118 Id., App318.

119 Id., App289.

120 Id., App279–80.

121 Ferreras, 946 F.3d at 186.

122 333 F.R.D. 364, 375 (E.D. Pa. 2019).

123 Altnor v. Preferred Freezer Servs., Inc. 197 F. Supp. 3d 746, 757 (E.D. Pa. 2016) (finding

commonality where all hourly employees were subject to the same meal-break and timekeeping

policies and whether they performed and were paid for meal-break work presented uniform,

class-wide questions); Davis v. Target Corp., 2023 WL 8373162, at *3–4 (E.D. Pa. Dec. 1, 2023)

(“[T]he class members share the important common question of whether time spent walking

from the building entrance to the time clocks and back again is compensable . . . and hence

whether the employer’s uniform policy of not paying workers for that type of time is sustainable

under the law.”).

124 142 F.4th at 156, 159.

125 We mentioned during oral argument Congress’ method of resolving overtime claims for

employees who are not exempt under the Fair Labor Standards Act by requiring the employees

opt into a collective action. The City’s ranking officers are salaried employees not able to seek

overtime under the Fair Labor Standards Act. But the principle remains. The employees in a

collective action under the Act must each present their specific overtime including what they did

on a particular day and time warranting unpaid overtime compensation.