12-3289-cv
Cabrera v. Nassau Med. Servs., P.C.



                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 28th day of May, two thousand thirteen.

PRESENT:  DENNY CHIN,
          RAYMOND J. LOHIER, JR.,
                    Circuit Judges,
          JOHN F. KEENAN,
                    District Judge.*
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MARIA CABRERA, individually and on
behalf of all others similarly situated,
                    Plaintiff-Appellant,

                        -v.-                                 12-3289-cv

NASSAU MEDICAL SERVICES, P.C.,
                    Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:              ABDUL KARIM HASSAN, Queens
                                      Village, New York.

FOR DEFENDANT-APPELLEE:               Bruce Provda, Jamaica, New York.

      *
          The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
           Appeal from the United States District Court for the

Eastern District of New York (Cogan, J.).

           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the appeal is DISMISSED.

           Plaintiff-Appellant Maria Cabrera appeals from the

district court's July 17, 2012 order directing the parties to

file a motion to approve the settlement of this case under the

Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the

"FLSA").   The motion was filed on July 31, 2012, and the

district court approved the settlement the same day.     The

settlement agreement approved by the district court provided

that defendant-appellee Nassau Medical Services, P.C. would pay

plaintiff an additional amount of $1,000 to cover the fees for

bringing the motion to approve the settlement in the event that

this Court or the Supreme Court were to rule that the FLSA does

not prohibit parties from settling without court approval.      We

assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues presented for

review.

           Before we may consider the merits of the instant

appeal, we must assure ourselves that we have subject matter

jurisdiction.   See Jennifer Matthew Nursing & Rehab. Ctr. v.


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U.S. Dep't of Health & Human Servs., 607 F.3d 951, 955 (2d Cir.

2010) ("We have an independent obligation to consider the

presence or absence of subject matter jurisdiction sua sponte.")

(citation, alteration, and internal quotation marks omitted).

"Ordinarily, only a party aggrieved by a judgment or order of a

district court may exercise the statutory right [under 28 U.S.C.

§ 1291] to appeal therefrom."    Deposit Guar. Nat'l Bank v.

Roper, 445 U.S. 326, 333 (1980).    It is well settled that "'a

party may not appeal from a judgment or decree in his favor, for

the purpose of obtaining a review of findings he deems erroneous

which are not necessary to support the decree.'"    O'Brien v.

Vermont, 184 F.3d 140, 141 (2d Cir. 1999) (per curiam) (quoting

Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242

(1939)).

           Further, under Article III of the Constitution, "an

actual controversy must exist at stages of appellate or

certiorari review, and not simply at the date the action is

initiated."    Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 70

(2d Cir. 2001) (citation and internal quotation marks omitted);

see also Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397

F.3d 77, 84 (2d Cir. 2005) ("[A]t all times, the dispute before

the court must be real and live, not feigned, academic, or

conjectural.   When the issues in dispute between the parties are
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no longer live, a case becomes moot, and the court -- whether

trial, appellate, or Supreme -- loses jurisdiction over the

suit, which therefore must be dismissed." (internal citations

and quotation marks omitted)).    To invoke federal jurisdiction,

"a litigant must have suffered, or be threatened with, an actual

injury traceable to the defendant and likely to be redressed by

a favorable judicial decision."    Lewis v. Cont'l Bank Corp., 494

U.S. 472, 477 (1990).    We are therefore without power "to decide

questions that cannot affect the rights of litigants in the case

before [us]."    Id. (citation and internal quotation marks

omitted).

            Here, we are presented with neither an appealable

order nor a justiciable case or controversy.    First, the July

17, 2012 order that plaintiff challenges is not an appealable

order because it did not aggrieve either party.    Rather, the

court simply ordered the parties to demonstrate that the

settlement was fair and reasonable.    Once the court was

satisfied, it did in fact approve the settlement on the agreed

upon terms, and it dismissed the case.    Even assuming the FLSA

does not require court approval for a settlement, the district

court's order is not an appealable order.

            Second, there is no case or controversy between the

parties here.    Although there may be a general continuing
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controversy regarding whether parties may settle claims brought

under the FLSA without court approval, in this case there is no

real, live dispute before us.    Defendant did not submit an

opposition brief, did not appear for oral argument, and seems to

agree with plaintiff on all aspects of her appeal.    The only

remaining question in this case is plaintiff's claim to $1,000

in attorney's fees that defendant agreed to pay her if this

Court on appeal determined that the district court erred in

requiring the parties to seek court approval of their

settlement.   An interest in attorney's fees, however, is

"insufficient to create an Article III case or controversy where

none exists on the merits of the underlying claim."     Lewis, 494

U.S. at 480; see also Steel Co. v. Citizens for a Better Env't,

523 U.S. 83, 107 (1998) ("[A] plaintiff cannot achieve standing

to litigate a substantive issue by bringing suit for the cost of

bringing suit.").   There is no actual controversy between the

parties, and thus we lack jurisdiction to hear the appeal.

         Accordingly, the appeal is DISMISSED.

                                FOR THE COURT:
                                Catherine O'Hagan Wolfe, Clerk




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