On September 4, 2013, in Camesi v. University of Pittsburgh Medical Center, the US Court of Appeals for the Third Circuit issued an opinion dismissing a consolidated appeal of two FLSA collective actions for lack of jurisdiction. The court held that the named plaintiffs could not appeal the collective action decertification order for the opted-in plaintiffs because the named plaintiffs voluntarily dismissed their individual claims with prejudice for the purpose of seeking the appeal only and therefore had no appealable final order. Further, the dismissal mooted the named plaintiffs' claims and they no longer had a sufficient interest in the litigation to serve as representatives of the opted-in plaintiffs.

In both Camesi and Kutznyetsov v. West Penn Allegheny Health System, Inc., the named plaintiffs commenced collective actions on behalf of themselves and a class of similarly situated individuals alleging their employers violated the FLSA by failing to provide proper compensation for time worked during meal breaks. Both received conditional certification to seek similarly situated class members.

After similarly situated plaintiffs had opted-in to the collective actions, the district courts denied final certification of the collective actions. To seek appellate review of the decertification orders, the named plaintiffs did not ask the district courts to certify their interlocutory decertification orders for purposes of appeal. Instead, they voluntarily dismissed their claims under Rule 41(a) of the Federal Rules of Civil Procedure (FRCP) to convert the interlocutory order into a final decision. The courts granted the named plaintiffs' voluntary dismissals with prejudice and dismissed the opted-in plaintiffs' claims without prejudice. The named plaintiffs then appealed the decertification orders for the opted-in plaintiffs.

The Third Circuit denied the consolidated appeal of the orders decertifying the collective actions for lack of jurisdiction, holding that:

The Third Circuit found Sullivan v. Pacific Indemnity Co. controlling. In Sullivan, the court held that a class action decertification decision under 28 U.S.C. § 1291 is an interlocutory order, not an appealable final order. The court analogized collective action certification orders to class action certification decisions because both are interlocutory. Like the plaintiffs in Sullivan, the Camesi and Kuznyetsov named plaintiffs attempted to "short-circuit the procedure" for appealing an interlocutory decertification order that is separate from, and unrelated to, the merits of the case.

The court found that to allow the named plaintiffs to throw out the entire action to obtain review of the decertification order undermines the court's policy against piecemeal litigation. The named plaintiffs were not entitled to appeal the decertification orders directly under Section 1291 and could not engage in a procedural "sleight-of-hand" by attempting to convert an interlocutory decision into a final order. Accordingly, the court dismissed the consolidated appeal for lack of appellate jurisdiction.

The court also held that since the named plaintiffs voluntarily dismissed their individual claims with prejudice, their claims were rendered moot and the named plaintiffs could no longer represent the opted-in plaintiffs. Although the named plaintiffs claimed that they still retained a personal stake in the outcome of the litigation in a representative capacity, the court made a narrow holding. Along with extinguishing their individual claims, the named plaintiffs lost any residual representational interest they once had, given that they were no longer "similarly situated" to the opted-in plaintiffs who retained their individual claims.

In Camesi, the Third Circuit refused to decide the broader issue of whether under the FLSA, as compared to Rule 23 class actions, persons who bring collective actions but who no longer have individual claims are able to retain a justiciable interest in the litigation in a representative capacity following conditional certification. This case is distinguishable from Genesis Healthcare Corp. v. Symczyk, where the entire action became moot once the named plaintiff's individual claims became moot, because in Genesis no plaintiffs had opted in to the action yet.

In light of Camesi, employers facing or embroiled in FLSA collective action litigation should keep in mind that denial of certification is interlocutory in nature. Employers may have the opportunity to obtain dismissal on jurisdictional grounds should the named plaintiffs seek dismissal of their claims (or a similar motion) to force an appeal on the certification decision. The Third Circuit also emphasized that a named plaintiff's ability to maintain actions in a representative capacity only in a collective action under the FLSA is still in "a state of flux."