Frank J. Souza, for Himself and on Behalf of All Others Similarly Situated v. John A. Scalone

Scalone appeals from an interlocutory order of the district court which held that the due process clause does not require any notice to be given to absent members of a class certified under Fed.R.Civ.P. 23(b)(2). Because at the time of the district court’s certification there was a conflict among the circuits on this controlling question of law, we permitted this appeal to be taken pursuant to 28 U.S.C. § 1292 (b). We vacate and remand for further findings.

Souza brought suit to contest the pension plan requirements of the Trustees of the Western Conference of Teamsters Pension Trust (Plan). The eligibility requirements of the Plan for vesting of retirement benefits are that the employee have: (1) worked a minimum of 15 years of service, (2) worked a minimum of 3,000 covered hours, and (3) attained a requisite age (now 45) before a break in service. Souza satisfied the minimum years and hours requirements but was not the requisite age at the time of his break in service. He contends that any age-at-break-in-service requirement is arbitrary and unreasonable and thus in violation of Section 302(c)(5) of the Labor Management Relations Act of 1947, 29 U.S.C. § 186 (c)(5).

Souza…