Jose Ageo Luna Vanegas v. Signet Builders, Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2964
JOSE A GEO L UNA V ANEGAS,
Plaintiff-Appellee,
v.
SIGNET B UILDERS, I NC .,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:21-cv-00054-jdp — James D. Peterson, Chief Judge.
____________________
On Petition for Rehearing and/or Rehearing En Banc
____________________
DECIDED JANUARY 13, 2025
____________________
Before SYKES, Chief Judge, EASTERBROOK, R OVNER , BREN-
NAN , SCUDDER , ST. E VE, K IRSCH , JACKSON -A KIWUMI , LEE,
PRYOR , K OLAR , and M ALDONADO, Circuit Judges.
PER C URIAM . On consideration of plaintiff-appellee’s peti-
tion for rehearing and/or rehearing en banc, filed on Septem-
ber 27, 2024, all judges on the panel have voted to deny panel

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rehearing. A judge in regular active service called for a vote
on the petition for rehearing en banc, and a majority in active
service voted to deny the petition for rehearing en banc.
Judges Jackson-Akiwumi and Maldonado voted to grant the
petition for rehearing en banc.
Accordingly, the petition for rehearing and/or rehearing
en banc is DENIED.

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No. 23-2964 3
M ALDONADO, Circuit Judge, joined by JACKSON -A KIWUMI ,
Circuit Judge, dissenting from the denial of rehearing en banc.
The question presented in this case is whether each opt-in
plaintiff in a Fair Labor Standards Act (FLSA) collective action
must establish personal jurisdiction in the court where the
case was filed. The majority concluded that they must,
expanding the Supreme Court’s decision in Bristol-Myers
Squibb Co. v. Superior Court of California, San Francisco County,
582 U.S. 255 (2017), and interpreting Federal Rule of Civil
Procedure 4(k)(1)(A) as a jurisdictional requirement for each
opt-in plaintiff. I respectfully disagree with both conclusions.
In my view, Bristol-Myers has no bearing on a federal
court’s exercise of personal jurisdiction under the Fifth
Amendment, and the majority’s interpretation of Rule 4 is
overly expansive. My analysis of these topics aligns with the
dissent’s thoughtful and well-reasoned opinion. I write
separately to elevate an issue that has thus far not been
addressed: I am concerned that the majority’s reading of Rule
4(k)(1)(A) violates the Rules Enabling Act of 1934, 28 U.S.C. §
2072, and raises significant constitutional concerns about the
separation of powers between Congress and the Supreme
Court. Though articulated by the Law Professor Amici,1 this
issue has neither been directly addressed by the majority
opinion nor resolved by other courts. Below, I expand on this
critical omission in the majority’s decision. I conclude with
my observations on the dramatic power shift to employers
affected by the majority’s rule.
1 See ECF No. 21 (Brief for Amicus Law Professors Helen Hershkoff,
Arthur Miller, Alan Morrison, John Sexton, & Adam Steinman) at 19.

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4 No. 23-2964
***
Some background on the dueling interpretations of Rule
4(k)(1) is necessary before I turn to substance. The courts that
have addressed the question presented in this FLSA case have
provided two facially reasonable interpretations of Rule
4(k)(1)’s text. One reading, espoused by the majority here and
by several of our sister circuits, understands Rule 4(k)(1) as a
jurisdictional rule that directly vests personal jurisdiction in
some federal courts and divests it from others. See Luna
Vanegas v. Signet Builders, Inc., 113 F.4th 718, 724 (7th Cir.
2024); Canaday v. Anthem Cos., Inc., 9 F.4th 392, 397 (6th Cir.
2021); Vallone v. CJS Sols. Grp., LLC, 9 F.4th 861, 866 (8th Cir.
2021); Fischer v. Fed. Express Corp., 42 F.4th 366, 375 (3d Cir.
2022). In support, these courts point to the text of Rule 4(k)(1)
which states that service “establishes personal jurisdiction
over a defendant” only in some situations, such as when
authorized by federal statute or when the defendant is
otherwise “subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located.” On
that understanding, where there is no statutory authorization
for effective service, as is the case with the FLSA, “Rule 4(k)(1)
applies,” such that before deciding a case, “federal courts must
assess the limits on state courts’ jurisdiction to determine their
own.” Luna Vanegas, 113 F.4th at 728.
The other reading of the Rule was advanced by the
majority in Waters v. Day & Zimmerman NPS, Inc., 23 F.4th 84,
93–94 (1st Cir. 2022). This reading sees Rule 4(k) as
incorporating only the service of process rules of the state in
which a district court sits. The Waters court relied on the rule’s
title, “Summons,” the 1993 committee notes clarifying its
limited scope to service-related matters, and the language in

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No. 23-2964 5
subsection (k)’s heading emphasizing the territorial limits for
effective service without addressing broader jurisdictional
constraints. Id. at 93–94. Under this view, the Rule is a
precondition on the ability of a court to exercise personal
jurisdiction but does not directly vest or divest personal
jurisdiction in any court. For reasons well-explained by that
court, I believe this interpretation is superior based on Rule
4’s text and historical context.
While the text of Rule 4 ostensibly accommodates both
readings, the constitutional implications of the majority’s
reading warrant closer scrutiny. Congress, through the Rules
Enabling Act (REA), delegated to the Supreme Court the
authority to promulgate procedural rules—not jurisdictional
rules. Interpreting Rule 4 as a jurisdictional rule oversteps this
delegation, raising significant separation-of-powers concerns.
Further, by reading Rule 4 to abridge the FLSA's collective
action provision, the majority compounds its REA problems.
Congress has expressed a clear and unequivocal policy
permitting “similarly situated” claims against national
employers. Interpreting Rule 4 as a jurisdictional rule allows
the Supreme Court to abridge a democratically-enacted
statute through the application of a purportedly conflicting
federal rule—a result that the REA proscribes. In my view,
these two related concerns compel the interpretation offered
by Waters and prohibit the majority’s interpretation. Shady
Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,
405–06 (2010) (when a rule is “susceptible of two meanings—
one that would violate § 2072(b) and another that would
not[,]” the proper approach is to “interpret [the rule] . . . in a
manner that avoids overstepping its authorizing statute”). I
explain these related problems next, after first briefly
outlining the strictures of the REA.

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6 No. 23-2964
I
The starting point of my analysis is the REA’s narrow
purpose. The REA delegates legislative power to the Supreme
Court “to prescribe general rules of practice and procedure . .
. for cases in the United States district courts.” 28 U.S.C. §
2072(a). Congress warned that the “rules shall not abridge,
enlarge or modify any substantive right.” Id. § 2072(b). A
federal rule complies with this mandate if it “really regulates
procedure,—the judicial process for enforcing rights and
duties recognized by substantive law and for justly
administering remedy and redress for disregard or infraction
of them.” Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941). The
test asks, “what the rule itself regulates: If it governs only ‘the
manner and the means’ by which the litigants’ rights are
‘enforced,’ it is valid; if it alters ‘the rules of decision by which
[the] court will adjudicate [those] rights,’ it is not.” Shady
Grove, 559 U.S. at 407 (quoting Miss. Publ’g Corp. v. Murphree,
326 U.S. 438, 446 (1946)).
Thus, to be a valid exercise of delegated power, a federal
rule must regulate procedure. But the majority construes Rule
4 as directly regulating jurisdiction. The statutory phrase
“rules of procedure” cannot encompass rules of jurisdiction.
Jurisdictional rules determine whether a federal court has the
authority to hear a case in the first place, before applying any
procedural rules. See Kontrick v. Ryan, 540 U.S. 443, 455 (2004)
(noting that jurisdictional rules, as distinct from procedural
rules, are “not . . . claim-processing rules”). The phrase
“jurisdictional rules” refers to rules “delineating the classes of
cases (subject-matter jurisdiction) and the persons (personal
jurisdiction) falling within a court’s adjudicatory authority.”
Id. Under this definition, a rule that directly regulates

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No. 23-2964 7
personal jurisdiction, that is, that delineates the persons
falling within the court’s authority, is not a rule of procedure.
This is in part because the jurisdictional question precedes the
application of any procedural rule. See id. at 454 (quoting
Schacht v. United States, 398 U.S. 58, 64 (1970) (“The procedural
rules adopted by the Court [via the rulemaking process] for
the orderly transaction of its business are not jurisdictional.”);
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978)
(“[I]t is axiomatic that the Federal Rules of Civil Procedure do
not create or withdraw jurisdiction.”). It is therefore far from
apparent that Rule 4 can properly be read, as the majority
does, to regulate the personal jurisdiction of the federal
courts.
The REA “underscores the need for caution” in
circumstances like these, which present a conflict between the
judicial branch and the democratically-elected legislature.
Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999). “[N]o
reading” of Rule 4(k) “can ignore the Act’s mandate that
‘rules of procedure shall not abridge, enlarge, or modify any
substantive right[.]’” Id. (quoting 28 U.S.C. § 2072(b)). In my
view, the scope of Rule 4 “is best kept within [the] tolerable
limits” of regulating only service of process, an interpretation
reflecting that both “the Rules Enabling Act and the general
doctrine of constitutional avoidance . . . jointly sound a
warning of the serious constitutional concerns[.]” Id. at 845–
46.
The majority does not engage fully with the REA. Instead,
it dismisses questions about the relationship between
procedure and jurisdiction by stating that “[t]he Supreme
Court has long held ‘Rule 82 must be taken to refer’ to

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8 No. 23-2964
‘jurisdiction of the subject matter,’ not over the person.”2
Luna Vanegas, 113 F.4th at 729–30 (quoting Murphree, 326 U.S.
at 445). I agree that Murphree established that, under the REA,
procedural rules are distinct from and cannot be conflated
with rules governing subject-matter jurisdiction. But I do not
read Murphree as holding that Rule 82’s bar does not apply to
personal jurisdiction, as the majority suggests. I see no
holding about personal jurisdiction in Murphree. With
Murphree being of little help to the majority, and absent any
clear intention from Congress, I do not believe that the REA
meant to delegate authority over personal but not subject-
matter jurisdiction—related doctrines considered similar in
more familiar contexts.
Consider Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574
(1999). There, to be sure, the Court acknowledged some ways
in which “[t]he character of the two jurisdictional bedrocks
unquestionably differs.” Id. at 583. But those differences “do
not mean that subject-matter jurisdiction is . . . the more
‘fundamental’” of the two. Id. at 584. “Personal jurisdiction,
too, is ‘an essential element of the jurisdiction of a district . . .
court,’ without which the court is ‘powerless to proceed to an
adjudication.’” Id. (citing Emps. Reinsurance Corp. v. Bryant,
299 U.S. 374, 382 (1937)). The implication of the majority’s
position is that subject-matter jurisdiction is the only real rule
of jurisdiction while rules of personal jurisdiction are merely
procedural. This is a recipe for unnecessary confusion in the
courts, which treat personal jurisdiction and subject-matter
2 Rule 82 provides: “These rules do not extend or limit the jurisdiction
of the district courts . . . .” FED . R. C IV. P. 82.

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No. 23-2964 9
jurisdiction similarly, at similar stages in litigation, and using
similar analytical frameworks. See id.
The better view would treat rules of personal jurisdiction
and subject-matter jurisdiction as both jurisdictional and
substantive. In fact, there are few rights that are more
substantive than rights governing when a court can exercise
jurisdiction over a person and also when a person can access
judicial proceedings at all. A rule of personal jurisdiction
establishes whether an individual may resolve a dispute in a
federal court in the first instance. Such rules implicate “our
deep-rooted historical tradition that everyone should have his
own day in court,” not just what procedures apply once an
individual is already there. Ortiz, 527 U.S. at 846 (quoting
Martin v. Wilks, 490 U.S. 755, 762 (1989)).
On the majority’s reading, Rule 4(k) stands as a unique
and unparalleled aspect of our civil procedure. Unlike any
other Federal Rule on the books, Rule 4(k) purportedly
establishes jurisdictional rules that directly regulate the
personal jurisdiction of every federal district court—without
any express congressional mandate to do so. This approach
diverges from Congress’s traditional method of delegating
jurisdictional rule-making to the courts. When Congress
intends to allow the federal courts to make jurisdictional rules
through the REA process, it does so explicitly. See, e.g., 28
U.S.C. § 2072(c) (2018); see also Scott Dodson, Rule 4 and
Personal Jurisdiction, 99 NOTRE DAME L. R EV. 1, 27–28 (2023). It
would be incongruous for Congress to have expressly
delegated rulemaking in some areas affecting jurisdiction
while silently granting the Supreme Court broad, untethered
power to define federal courts’ personal jurisdiction through
a procedural rule governing service of process. Cf. Whitman v.

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10 No. 23-2964
Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (noting that
Congress does not “hide elephants in mouseholes”).
II
Even if I agreed that rules of personal jurisdiction are
“procedural” under the REA, I would still have significant
separation-of-powers concerns regarding the majority’s
application of Rule 4. The majority’s approach undermines
Congress’s intent by effectively amending the FLSA’s
“similarly situated” collective action provision to impose a
geographic restriction. In doing so, it empowers the Supreme
Court to override congressional purpose through a federal
rule. This exceeds the permissible scope of procedural
regulation under the REA, as the Rule directly conflicts with
the statute. Shady Grove, 559 U.S. at 425 (Stevens, J., concurring
in part) (explaining that “the separation-of-powers
presumption . . . counsel[s] against judicially created rules
displacing . . . substantive law.”).
The FLSA’s collective action provision amounts to a
“similarly situated” claim-specific aggregation tool—the opt-
in process—that Congress meant to displace conventional
service requirements associated by default with most
lawsuits. This reflects Congress’s intent to establish a unified
remedial framework, allowing employees to sue employers
on behalf of all those who are “similarly situated.” 29 U.S.C. §
216(b); see, e.g., Waters, 23 F.4th at 97. As the Supreme Court
has recognized, “Congress [has] left intact the ‘similarly
situated’ language providing for collective actions, such as
this one. The broad remedial goal of the statute should be
enforced to the full extent of its terms.” Hoffmann-La Roche Inc.
v. Sperling, 493 U.S. 165, 173 (1989). The statute also suggests

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No. 23-2964 11
the need for jurisdiction over the claim of the named plaintiff
who initiated the action but says conspicuously nothing about
opt-ins. Hoffmann-La Roche, 493 U.S. at 167–68 (“[A]n action
‘may be maintained against any employer . . . in any Federal .
. . court of competent jurisdiction by any one . . . employee[]
for . . . himself . . . and other employees similarly situated.’”
(quoting 29 U.S.C. § 216(b) (emphases added)). The majority’s
interpretation is both in direct tension with the statute’s text
and undermines its remedial purpose, effectively substituting
judicial preferences for Congress’s legislative judgment. This
overreach heightens the separation-of-powers concern and
risks eroding the integrity of democratically-enacted statutes.
In fact, Luna Vanegas’s circumstances are exactly what
Congress sought to address via § 216(b). Working on a guest-
worker visa, Luna Vanegas constructed livestock
confinement structures in several states (Wisconsin, Indiana,
Iowa, and Minnesota) for his employer Signet Builders, Inc.,
and sought unpaid overtime wages for time spent working in
each state. Luna Vanegas claims that Signet denied him and
all similarly situated guest workers overtime pay because of
its corporate policy of misclassifying them as agricultural
workers exempt from the protections of the FLSA.
Yet, under the majority’s reading, only employees who
worked in Wisconsin—where the lawsuit was filed and where
Luna Vanegas found a legal services lawyer to represent
him—can join this collective action, excluding workers from
Indiana, Iowa, and Minnesota who are alleged to have
suffered the same harm. The majority downplays this seismic
consequence by observing that employees can always file suit
in the employer’s home state (here, Texas). But (even

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12 No. 23-2964
assuming that an employee can find a lawyer to litigate in the
employer’s home forum), the majority’s rule limits the
plaintiff’s choice of forum and creates a preference for the
employer’s locale if the employee’s allegations cross state
lines. This undermines the balance of power between
employees and their employers that the FLSA sought to
remedy. See, e.g., Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697,
707 n. 18 (1945) (“[T]he prime purpose of the legislation was
to aid the unprotected, unorganized and lowest paid of the
nation’s working population . . . who lacked sufficient
bargaining power to secure for themselves a minimum
subsistence wage.”). Forcing plaintiffs whose allegations
support an interstate collective to file in the employer’s home
state tilts the scales in favor of employers. Given this practical
context, we should resist reading Rule 4 to impose a new
geographic limitation on language in a federal statute, where
no such limitation on the scope of collective actions otherwise
exists. Congress already made the determination on how to
appropriately limit the scope of collective actions, to prevent
judicial overreach and protect employers, by limiting them to
only those employees who are “similarly situated.”
The majority downplays the significant shift in decades of
FLSA practice created by its ruling. For example, it asserts that
“in practice courts treat FLSA collectives as agglomerations of
individual claims.” Luna Vanegas, 113 F.4th at 725. But, in
reality, payroll records do much of the work in proving many
FLSA claims, supported by representative discovery. See, e.g.,
Smith v. Fam. Video Movie Club, Inc., 2012 WL 4464887, at *2
(N.D. Ill. Sept. 27, 2012) (“[I]n FLSA collective actions,
permitting full-scale, individualized discovery of all opt-in
plaintiffs would frequently undermine the purpose and
usefulness of collective actions. . . . For these reasons, courts

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No. 23-2964 13
have allowed representative discovery in FLSA collective
actions.”) (collecting cases)). And not every opt-in plaintiff
needs to testify at trial to prove their individual claim;
representative testimony is common. See, e.g., Morgan v. Fam.
Dollar Stores, Inc., 551 F.3d 1233, 1279 (11th Cir. 2008) (“[T]he
general rule [is] that not all employees have to testify to prove
overtime violations.”); Reich v. Gateway Press, Inc., 13 F.3d 685,
701 (3d Cir. 1994) (“Courts commonly allow representative
employees to prove violations with respect to all
employees.”). FLSA claims are litigated much more like a
representative action, and not as an “agglomeration of
individual claims” as the majority suggests.
The FLSA structurally balances the scales to allow one
employee to come forward first for others who are similarly
situated. That employee, like Luna Vanegas, becomes the
name and face of the lawsuit. Often, only a few employees (if
they can secure counsel) are willing to risk being the first to
sue the hand that feeds them. The collective action provision
exists to support those employees who choose to be the first,
by allowing them to join together all similarly situated
employees to collectively vindicate their rights, irrespective of
where they live. That process not only supports the named
plaintiff but provides other employees who may not have the
means or willingness to take on a lead role the ability to opt-
in. But these dual benefits—support for the named plaintiff
and ease of access to litigation for the opt-ins—are
significantly diminished under the majority’s rule. The
employees that take the risk to bring suit on behalf of their co-
workers are now limited to a collective of employees who also

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14 No. 23-2964
worked in the state where the suit was filed unless they can
manage to sue in the employer’s home state.3
The majority transforms personal jurisdiction (meant as a
shield to protect out-of-state defendants from being hauled
into a forum with which they have no connection) into a
sword for national employers to cut down the size of
collectives in any state where they are not subject to general
personal jurisdiction. This only benefits employers, who
already face little to no prejudice or harm from the alternative,
undoing the balance of power the FLSA struck. Take Signet.
It provides construction services in Wisconsin and is subject
to specific personal jurisdiction there because of work
performed by Luna Vanegas and others. In this era of
electronic discovery and remote proceedings, there may be
little practical difference (especially before trial), for Signet to
defend an interstate collective action in federal court in
Wisconsin, as opposed to its home state of Texas. Signet may
anticipate more favorable results in its home state, or more
likely, that employees will not be able to secure counsel
willing to bring suit in Texas (or other states) at all (Luna
Vanegas brought suit with the assistance of a Wisconsin legal
3 We should be especially wary of imposing an inefficient
geographical limitation when Congress has signaled its intent that the
FLSA be enforced to the fullest extent by permitting employees to seek
attorney’s fees. 29 U.S.C. §216(b) (“The court . . . shall . . . allow a
reasonable attorney’s fee to be paid by the defendant, and costs of the
action.”). The FLSA’s fee provision is meant to encourage enforcement
and further the FLSA’s policy aims. See Barrentine v. Arkansas-Best Freight
Sys., Inc., 450 U.S. 728, 740 n.16 (1981).

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No. 23-2964 15
services organization). Either way, only Signet benefits from
this arrangement.
***
In sum, I would have granted en banc review so that the
full court could consider the dissent’s position and whether
the majority’s interpretation of Rule 4(k) violates the Rules
Enabling Act in the two ways described herein.
Accordingly, I respectfully dissent from the denial of
rehearing en banc.

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